Constitutional Theory II

Constitutional Democracy has many challenges. To sustain the pillars in defence of democracy is necessary to see the menace coming before it creates roots and damege the constitution. Above all parties and current views, the democratic prospect offers solutions like: inclusive democracy, participative democracy, agonistic democracy, deliberative democracy and militant democracy. What this paper highlights is that first is necessary to see the sort of menace is coming to 'fit the best constitutional democratic solution'. New threats such as, fake news, political polarization and the efforts to combat pademic are forcing to look for different and fast responses. The variation of democratic models offers a good range of tools to fit as best response. This answer can be lead by constitucionals scholars and followed or not by the parliament, without forgetting the decisive posture by the Supreme/Constitutional Court. This final link will be traced in the end of presentation.

In the discourse of legal constitutionalism has put forward the constitutional pre-commitment mechanism to defend the constitutional rigidy in the strong sense, under the reasons: a) the possibility of overcoming passions or interests - b) ensure efficiency or overcome strategic temporal inconsistency - c) beat the hyperbolic discount - and, d) ensure the moral or substantial reasons. However, some postulates have been defended against this approach, such as: a) the reasonable disagreements of the present and future generation - and, b) the conception of the anthropological nature of the human being of the current generation – positive understanding of the individual in the political community – and a conception of the autonomy of the political will. In this sense, under these considerations, can we consider the constitutional pre-commitment mechanism appropriate for the defense of a constitutional theory that pretends to defend constitutional rigidity in the strong sense?

The topic touches upon the idea of critical constitutionalism as an effect of the constitutional crisis in the CEE. This approach considers contexts, meanings and roles that a particular institution fulfils. Due to that, it is essential to assess institutions as problem-solving entities. Thus, while considering, e.g. legal institution, it is necessary to take into account its ability answerability to the needs for which the institution was created, dynamics of the crisis that passes through and finally, the possibility of “learning“ - the modification, development and adaptation of the institution to the history it has undergone. Critical constitutionalism applies these conditions to the Constitution. It will be argued that in the context of Poland, a change of the Constitution as a response to the ongoing crisis should not be seen as a sign of weakness but a way to regain trust for public institutions and create safeguards for the future.

Recent work on constitutional change explores aspects of constitutional change from a diverse set of perspectives, in a diverse set of contexts, and directed towards a diverse range of focuses. But a diverse set of conceptions are also being relied on, leaving the theory behind constitutional change fragmented, inconsistent, and at times incoherent. In particular, distinctions are now often drawn between formal and informal types of constitutional change, but the conceptions are defined and explained differently, betraying a lack of terminological and theoretical consensus, that can confuse scholarly discussion. In an effort to address this gap, this paper will present a new overarching conceptual framework that can be used to distinguish and explain important distinctions between a formal, informal and real conception of a constitution, by focusing on the multiple and distinct ways in which constitutional norms are expressed, and ultimately change over time.

To what extent is natural-law theory relevant to modern constitutional jurisprudence? This paper seeks to answer that question by comparing how courts in Ireland and the United States have used, and continue to use, natural-law reasoning in interpreting their constitutions' fundamental-rights provisions. Natural law is relevant despite decisions that disclaim reliance upon it. Whether implicitly or explicitly, natural law seems to undergird certain provisions of both nations' constitutions, and therefore natural-law reasoning seems to be inescapable. By a comparison of these constitutional provisions and the jurisprudence surrounding them, this paper will demonstrate that natural-law reasoning is inherent in constitutionalism, particularly as it pertains to fundamental rights. Even so, various mechanisms of addressing the natural-law basis for fundamental rights have proven more or less enduring and successful, providing insights for natural-law constitutionalism in other countries.