Pildes, Richard H. --- "Political Parties and Constitutionalism" [2011] ELECD 374; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 14

Section Title: Political Parties and Constitutionalism

Author(s): Pildes, Richard H.

Number of pages: 11

Extract:

14. Political parties and constitutionalism
Richard H. Pildes



1 INTRODUCTION
Constitutions and judicial review are often thought of, particularly in more recent decades, as
devices for ensuring the protection of individual rights and, through equality provisions, the
rights of potentially vulnerable minority groups. Within this conception, constitutional law is
viewed as a means of restraining potentially oppressive majorities from running roughshod
over personal liberties or the interests of minority groups. This rights-equality conception
tends to emphasize what might be called `negative constitutionalism': constitutions as shields
against majoritarian excesses.
But constitutions also serve to constitute political power. In constitutional democracies,
constitutions empower democracy: they create the institutional structures, offices of govern-
ment and framework for decisionmaking that organize the diffuse preferences of a mass soci-
ety into recognizable, meaningful and legitimate political outcomes. The study of how
constitutions create positive political power, and how constitutional law sustains (or fails to
sustain) this power, might be called `positive constitutionalism'.1 Though most modern
constitutional scholarship focuses on the role of constitutions as checks on political power,
the role of constitutions as creators of political power is at least as important, both histori-
cally, in terms of why constitutions were created originally, and in terms of the practice of
governance today. For example, the American Constitution, the oldest constitution, was
created to realize this kind of positive constitutionalism: its central purpose was to create a
powerful, effective system for governance at the national level. Only after that Constitution
was created was the ...