JOBNAME: No Job Name PAGE: 1 SESS: 11 OUTPUT: Mon Oct 20 16:36:47 2014 SUM: 77F92C20 /Xpp84/wiley_journal_R-S/RAJU/raju_v27_i4/raju_12062 Is Constitutional Rigidity the Problem? Democratic Legitimacy and the Last Word JOSÈ LUIS MARTÍ The Constitution [. . .] is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as it relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law. (Jefferson 1999, 379) 1. The Problem What I will call here The Problem is a well-known controversy of political legitimacy affecting most of our modern constitutional democracies. The Problem is, in short, that some powerful ideological minorities may be allowed, under certain circum- stances, to impose their preferences or beliefs over those of the majority simply by appealing to constitutional argument, while our constitutions, in many respects, are far from clear and univocal, and we can reasonably disagree about how to interpret them. Majorities can be wrong, but minorities can be wrong as well. And The Problem is apparently worse because most of our constitutions are considerably rigid. Democratic majorities, even wide, pervasive, and reflective ones, can be prevented from ruling, and can be ruled themselves by a minority, who can be even entitled to block or veto any constitutional amendment. Is this legitimate? Many, of course, will respond affirmatively, at least in those cases in which the majoritarian judgment entails a violation of the minority’s rights. However, the question of whether a particular majoritarian decision actually violates some rights or not is in many occasions morally, politically, and constitu- tionally controversial. Constitutional texts are often vague or abstract; sometimes they are obscure and require interpretation. And, as noticed by Thomas Jefferson at the very beginning of modern constitutionalism, just a few years after Marbury v. Madison: “The Constitution [. . .] is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please” (Jefferson 1999, 379). Toppan Best-set Premedia Limited Journal Code: RAJU Proofreader: Mony Article No: RAJU12062 Delivery date: 20 Oct 2014 Page Extent: 9 Ratio Juris. Vol. 27 No. 4 December 2014 (567–75) © 2014 The Author. Ratio Juris © 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden 02148, USA. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39