Equality, Democracy, and Constitution: We the People in Court

Commentators have seen the disabling provisions found in the American and Canadian constitutions as undemocratic because they restrict majority powers. Building upon the work of John Hart Ely, this paper puts forward a conception of democracy which nourishes both collective responsibility and individual judgment. The distinguishes between "statistical" and "communal'' conceptions of democracy. Traditional theories, such as Ely's, have relied on the statistical notion which of individuals in a democracy acting each on their own. In the communal conception, decisions are made by the ' 'people'' acting as a distinct and collective unit of responsibility. The author then elaborates on the communal conception by identifying two variations of it, ' 'integrated'' and ' 'monolithic' 'forms of collective action. In the latter, both the unit of responsibility and the unit of judgment are collective, while in the former the unit of judgment resides in the individual. If democracy is understood in the integrated communal sense, then many of the disabling provisions in the American and Canadian constitutions can be seen to democracy rather than contradict it.