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Democratic Constitutionalism and Cultural Heterogeneity, 25 AUSTRALIAN JOURNAL OF LEGAL PHILOSOPHY 185 (2000).


The enterprise of democratic constitutionalism rests upon the premise of collective agency. If we ask who makes a democratic constitution, the answer must be given in the first person plural. In the United States, for example, our Constitution fittingly begins, 'We the ordain and establish this Constitution...' The collective agency of the people constitutes a 'demos' capable of 'bestowing...democratic authority on a polity.'

Of course the appearance of a first person plural is a political construction; it does not correspond to any existing entity that needs merely to clear its throat in order to speak. Who 'we the people' are, and what exactly they are saying, is endlessly debatable. But those who would engage in the enterprise of democratic constitutionalism must nevertheless presuppose such a shared voice, which typically speaks in order to exercise the power of collective agency to establish the ongoing structure of a democratic state.

All states are in some sense collective agents. States act; they make decisions, form and pursue policies, enter into treaties and contracts, enact legislation, and so forth. From the perspective of practical reason, which is to say from the perspective of entities that deliberate and decide, states, no less than persons, must possess a 'unity of agency.'

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