Constitutional Rigidity and the Default Rule

SEBASTIÁN LINARES

Ratio Juris

Wiley

Lugar: Chichester, UK; Año: 2014

1467-9337

I consider whether there is any reason to think that majority rule has a default status in the face of deep and pervasive moral disagreements in constitutional matters. I will consider three main viewpoints in the literature on this topic: 1) the first one regards majority rule as the default rule in constitutional conventions, 2) the second one believes that unanimity, and not majority rule, is the default rule and 3) a third perspective, that thinks that there is no default rule at all at the end of our recurrent disagreements. I will defend this last thesis and gauge its implications for the design of constitutional conventions. I analyze the procedural choices that a constitutional convention faces, and show that majority rule is not automatically straightforward. I contend that deliberation is the only option in the face of persistent disagreement on substantive and procedural issues.