CONSTITUCIÓN, DEMOCRACIA Y ASAMBLEAS CONSTITUYENTES: EL FUNDAMENTO DEL CONSTITUCIONALISMO EN LA PRIMACÍA DEL MOMENTO CONSTITUYENTE

Abstract

In the debate that aims at justifying constitutionalism from the acceptance of the value of democracy some arguments ascribe some normative importance to the body or the procedure that creates a constitution, deeming the mere appeal to a right-based moral theory to be incomplete or incorrect. Even though the arguments have heterogeneous origins, it is possible to reconstruct some of the underlying premises in the following: primacy of democracy over rights, by virtue of which they take on complete meaning in the popular sovereignty principle; a dualistic strategy that does not assign equal quality to every political decision but gives priority to constitutional policies over ordinary legislative policies; a lack of confidence in ordinary representation and the need for a different and more complex procedure for constitutional creation and amendment; and, finally, metaethics neutrality and irrelevance of an ontologically objectivist theory. From these premises two types of argumentative instruments have been mainly employed to give priority to the constituent decision and to found on it the supremacy of constitution. On the one hand, analogy of weakness of individual will with constitutional democracy is considered to justify the extension of precommitment to constitutional restraints as self-imposed ties. On the other hand, it has been argued that a legal concept of constituent power can be used to give precedence to “popular” decisions adopted in a broad deliberative practice against parliamentary decisions.