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date: 21 November 2018

Summary and Keywords

The study of constitutionalism often begins with the question of what a constitution is. Sometimes the term refers to a single legal document with that name, but the term “constitution” may also refer to something unwritten, such as important political traditions or established customs. As a result, scholars sometimes distinguish between the “Big-C” constitution, that is, the constitutional document, and the “small-c” constitution, the set of unwritten practices and understandings that structure political life.

Constitutionalism is typically associated with documents and practices that restrict the arbitrary exercise of power. Most constitutions contain guarantees of rights and outline the structures of government. Constitutions are often enforced in court, but nonjudicial actors, like legislatures or popular movements, may also enforce constitutional provisions.

The relationship between democracy and constitutionalism is not at all straightforward, and it has received an enormous amount of scholarly attention. Constitutionalism seems to both undergird and restrain democracy. On the one hand, constitutions establish the institutions that allow for self-government. On the other, they are often said to restrict majoritarian decision-making.

Related to this question of the relationship between constitutionalism and democracy are questions about how constitutions change and how they ought to change. Can written constitutions change without changes to the text, and can judges bring about these changes? Do extratextual changes threaten or promote democracy?

Finally, not only do individual constitutions change, but the practice of writing constitutions and governing with them has also changed over time. In general, constitutions have grown more specific and flexible over time, arguably, allowing for a different kind of constitutional politics.

Keywords: constitutional democracy, constitutional rights, structures of government, constitutional design, constitutional enforcement, counter-majoritarian difficulty, constitutional constraints

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