The Enabling Role of Democratic Constitutionalism: Fixed Rules and Some Implications for Contested Presidential Elections

Abstract

This article explores the preconditions for the transfer of power within democratic regimes. Invariably, constitutional discussion of the necessary preconditions for a successful, peaceful transition to power focuses primarily on rights guarantees to the defeated minority. The minority must be assured of the ability to proclaim its views in the future, the ability to assemble and to organize itself, the ability to be secure in their person and property - in short, much of the formation of rights associated with democratic liberties. But just as surely as the rights domain is necessary for a rudimentary formulation of democratic legitimacy, it is also incomplete. Just as central are the structural protections, which include the obligation to stand for election anew at some fixed or relatively fixed interval, the limitations on the powers of office, and the accountability of the governors to the structures of office, as exemplified in this country by the divisions of powers among coordinate branches of power. This article focuses on the structural components of constitutionalism as a necessary constraint on democratic politics. This precommitment necessarily thwarts or limits deliberative choices after constitutional enactment, yet serves as a precondition for the functioning of democratic politics. The article focuses on the work of political theorists Jon Elster and Stephen Holmes to argue that current constitutional scholarship underestimates the importance of constitutional obduracy. The article concludes with a reexamination of the Florida electoral crisis of 2000 from the vantagepoint of the entrenchment of ex ante constitutional procedures.