Constitutional Amendments, Democracy, and the Risk of Substantive Overdose

Abstract This article critically examines the tendency to settle political disagreements through constitutional amendments rather than through majoritarian legislative processes. The analysis argues that this trend triggers a “substantive overdose,” that is, the weakening of democracy as a process that legitimizes substantive decisions through the participation of citizens as free and equal decision‐makers. This difficulty has two prongs: the first concerning legitimacy, the second agency. Constitutional amendments with substantive functions expand democracy's substantive core, compromising its ability to operate as a “procedural pact” that generates legitimate decisions protecting citizens’ equal liberty in the face of disagreement. Moreover, the judiciary's countermajoritarian power weakens citizens’ agency by reformulating their role from active decision‐makers to passive claimants and jeopardizes majority rule as a distinctive trait of democratic decision‐making. The article concludes by advocating for constitutional amendments that protect democracy's procedural core rather than enshrining substantive policy positions.