The present Situation of Constitutionalism. Some Thoughts about the Idea of Democracy by Law

Constitutionalism is, more often than not, equated with a notion of “achieving democracy through the law”. This entails the notion that, in a democracy, the law is expected to ensure the development of fundamental rights. The purpose of the article is to analyse the shift thus involved in the concept of democracy, as well as the high expectations law has to meet in order to achieve these goals. It is suggested that this involves a collapse of “constitutionalism” into “constitutional law”. Several important aspects of constitutionalism, such as the separation of powers or the existence of a hierarchy of norms, are transformed into technical words of art which courts use as if they were neutral and uncontroversial.