Berkeley Law

This article explores the tensions between the value of democratic constitutionalism and the desire to protect cultural diversity. Democratic constitutionalism presupposes the ongoing construction of a collective agent, --"We the People"-- in whose name the state purports to govern. Using the work of Hanna Pitkin, the article explores the preconditions for this construction, with particular attention to Pitkin's observation that "how we are able to constitute ourselves is profoundly tied to how we are already constituted by our distinctive history," by our "fundamental ethos or temperament." The protection of cultural heterogeneity precisely challenges the premise of a "fundamental ethos or temperament." The article examines in detail three structural devices by which democratic states have sought to mediate this tension: individual rights, group rights, and the devolution of sovereignty (federalism). The article assesses the potential strengths and limitations of each of these devices for fostering cultural heterogeneity. It also evaluates the social and political strains that each of these mechanisms potentially places on the enterprise of democratic constitutionalism.