Constitutionalism and Majoritarianism Reconciled

This paper defends the view that both constitutional provisions-norms that are not dependent on our choices-and statutory provisions-norms that are contingent on our choices-are necessary features of a liberal democracy. We make the case for institution dependent goods, arguing that some goods (e.g., marriage equality) depend for their existence on being produced by the right law-making institution with its own characteristic deliberative process. The institution that brings a legal norm into being (and the deliberation by which it was brought into being) determines the value of the norm. Hence, we conclude that individuals may sometimes have an interest (or even a right) that their legal rights be protected by a certain institution, say, the legislature rather than another, say, the constitution, and vice versa.