settled in public deliberations under certain idealised conditions of full information,
equal access, symmetry, and so on.
Constitutional democracy is the concrete
realisation of these principles. The addressees of the law must simultaneously be its
authors, and this condition extends to the laws of lawmaking, that is, the constitution.
In large and complex societies, the immediate identity of addressees and authors is
possible neither in everyday lawmaking nor in constitutional lawmaking. Yet, the
addressees of the law must at least be able to understand themselves as
simultaneously the authors of the law. So, the constitution must be subject to
democratic will-formation. At the same time, however, the latter must be
constitutionally regulated in such a way as to protect the pluralism of modern
societies and the singularity of each individual. The citizens can only understand
themselves as the authors of the law if they are simultaneously constituted as free and
equal subjects under the law (CD 767). Hence, the thesis of co-originality – or ‘co-
implication’ (CD 779) – states that there is a relation of mutual implication and
presupposition between constitutionalism and democracy. Their relationship is
internal and enabling rather than external and constraining (BFN 128; IO 259, 261).
In this way, Habermas seeks to reconcile constitutionalism and democracy.
The aim of my deconstructive reading of Habermas’s texts in the following is to show
that the relationship between constitutionalism and democracy is ultimately
undecidable, and that, contra Habermas, this undecidability is what accounts for how
constitutional democracy works. In addition, I will show that Habermas is only able to
reconcile constitutionalism and democracy by introducing a ‘fiction’; yet this fiction
does not solve the undecidability, but only displaces it. Bonnie Honig has put forward
a similar critique of Habermas,
but in the last section of the paper, I discuss the
limitations of her critique. This also serves to show the implications of the
deconstructive reading for the politics of constitutional democracy and for how one
reads philosophical and political texts. The differences between a Habermasian
rational reconstructive approach and a Derridean deconstructive approach to
constitutional democracy have been noted by several commentators.
3
The democratic principle states that ‘only those [legal] statutes may claim legitimacy that can meet
with the assent (Zustimmung) of all citizens in a discursive process of legislation that in turn has been
legally constituted’ (BFN 110). The discourse principle stipulates that ‘Just those action norms are
valid to which all possibly affected persons could agree as participants in rational discourses’ (BFN
107) This is also expressed in the ‘system of rights’ that Habermas reconstructs as the basis of
legitimate law and of constitutional democracy (BFN 121ff).
4
Bonnie Honig, ‘Dead Rights, Live Futures: A Reply to Habermas’s “Constitutional Democracy”’,
Political Theory 29:6 (2001), 792-805.
5
Honig, ‘Dead Rights, Live Futures’; Seyla Benhabib, ‘Democracy and Difference: Reflections on the
Metapolitics of Lyotard and Derrida’, The Journal of Political Philosophy 2:1 (1994), 1-23; David
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Convention