IV Observations, 38 What’s in Crisis? The Postwar Constitutional Paradigm, Transformative Constitutionalism, and the Fate of Constitutional Democracy

Constitutional democracy evolved during the twentieth century from a system committed to the rule of law that guarantees a limited set of negative rights to a system that promotes human dignity. Lorraine Weinrib describes a “postwar constitutional paradigm” that “would not merely define and stabilize the exercise of state power through majoritarian machinery but would give legal priority to equal citizenship and respect for inherent human dignity.”1 Inspired by the South African example, Karl Klare coined the phrase “transformative constitutionalism” to describe...