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Democracy Without a Net? Separation of Powers and the Idea of Self-Sustaining Constitutional Constraints on Undemocratic Behavior

Gardner, James A., "Democracy Without a Net? Separation of Powers and the Idea of Self-Sustaining Constitutional Constraints on Undemocratic Behavior" . St. John's Law Review, Vol. 79, pp. 293-317, March 2005 Available at SSRN:

Abstract:

    The United States Constitution is designed to achieve good government by relying on two distinct systems: a primary system that achieves good governance through democratic electoral accountability; and a set of self-sustaining structural backup systems designed for situations in which the democratic system fails, and which operate by limiting the ability of bad rulers to do serious harm to the public good. A key premise of this kind of dual structural arrangement is that effective backup systems must operate independently of primary democratic systems; because they are needed precisely when democratic mechanisms have failed, they cannot depend for their success on democratic modes of behavior. I argue that this view of the role of democracy in the constitutional structure is too narrow, and that the effect of democracy on the operation of constitutional systems cannot plausibly be confined to those specific subsystems intended to operate by overtly democratic means. Democracy is powerful enough to shape the institutional environment in ways that affect the operation not only of those systems designed to operate democratically, but also the operation of systems that are designed to operate independently of democratic influences. This helps to explain why the U.S. Constitution's structural backup systems have never worked as originally contemplated: democratic institutional norms, and associated modalities of democratic politics, have crowded out the behavior on which the stability of such structural systems by design depends.
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