Constitutional Resistance as an Essential Ability of Modern Democracy

Правовая парадигма. 2018. Vol. 17. No. 4. P. 78–84.

Lesiv B.

Every organism has not only its own constitution, but also an attribute of resistance which protects it from external harmful impact. The same way every democratic State must have not only a formal Constitution and legitimate government, but it is not less important to be able to exercise constitutional resistance. There are many fields of constitutional matter which are studied sufficiently, such as status of constitutional legalism (constitutional legality) or separation of powers, but this paper’s aim is to disclose the other detached part of democratic mechanism, which can answer the question: why recently existed States with “constitutional legalism” and “separation of powers” were crashed. Theoretical basis of constitutional resistance is disclosed through the doctrines of rule of law and constitutional review and through the works of great founders of western constitutionalism such as Madison, de Tocqueville, Dicey, Sieyes, Sartori and others. The author’s original view is based on the practice of different high courts. Experience of constitutional crisis in the one States and successful constitutional resistance in the others demonstrates the practical value of this institution for democratic society. Results: such reflections give an opportunity to propose the formula of constitutional resistance. Allusions to the organic theory of the State bring to the relevant conclusion that constitutional resistance is the Health of the State.

Keywords: constitutionalism, Discretionary Powers, limited government, unconstitutional decisions, constitutional resistance