The 2004 US election again saw controversy over the election procedures. One of the
most memorable images from the 2000 presidential election was that of election
officials in the state of Florida examining ballot cards and looking for dimples and
holes. What looked trivial and absurd to the onlooking world in fact turned upon an
important political and philosophical problem. The election officials were engaged in
the identification of the will of the American people. The election was supposed to be
the expression of popular sovereignty, and the officials were trying to recognise the
true will of the people in those holes and dimples.
The will of the people did not express itself in an unmediated fashion. It was
mediated by those ballot cards and by election officials’ interpretation of them.
Moreover, there are rules in place concerning how to identify the will of the people:
constitutional rules and election laws determining who can vote, how they can vote,
how to count the votes, and so on. And there are institutional remedies in place for
interpreting those rules, namely the courts and, in the last instance, the US Supreme
Court. So, democracy – the popular sovereignty of the people – is mediated by the
rule of law and constitutionalism, for instance by rules for the equal right to vote and,
hence, for the equal right to be counted as partaking in the people. This mediation of
democracy by constitutionalism secures equality and bestows legitimacy upon the
former. Similarly, constitutionalism is mediated by democracy. Constitutional rules
and human rights are not simply given, but put in place by elected representatives
chosen by the people and interpreted by judges chosen by the people or their
representatives. So, democracy mediates constitutionalism and thereby bestows
legitimacy on it.
It is a widely held belief today among laypersons as well as experts that
constitutional democracy is the best available form of government, and that it
involves a ‘balancing’ or even ‘interdependence’ of its two key components:
constitutionalism (human rights, the rule of law, and so on) and democracy (popular
sovereignty, and so on). This idea has also been central to Jürgen Habermas’s work in
legal and political theory and to the development of his theory of deliberative
democracy during the last fifteen years. In Between Facts and Norms and subsequent
writings, Habermas has argued that his discourse theory of democracy can reconcile
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An earlier version of this paper will appear in Lasse Thomassen (ed.), The Derrida-Habermas Reader
(Edinburgh: Edinburgh University Press, 2006), pp. 176-94. I would like to thank Lars Tønder, Paulina
Ochoa-Espejo, Lars Ethelberg Nielsen, Ian O’Flynn and the participants at the conferences where I first
presented this paper for their comments on earlier versions of the paper. The research for the paper was
supported financially by the ESRC and the Danish Research Academy.
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Convention