An Account of the Democratic Status of Constitutional Rights

The paper makes a twofold contribution. Firstly, it advances a preliminary account of the conditions that need to obtain for constitutional rights to be democratic. Secondly, in so doing, it defends precommitment-based theories from a criticism raised by Jeremy Waldron—namely, that constitutional rights do not become any more democratic when they are democratically adopted, for the people could adopt undemocratic policies without such policies becoming democratic as a result. The paper shows that the reductio applies to political rights, yet not to non-political rights, such as reproductive, environmental, or privacy rights. The democratic status of the former is process-independent. The latter, by contrast, are democratic precisely when they are adopted by democratic means.