The best answers to the questions “who should decide?,” “what should be decided?,” and “how should the decision be taken?” do not always sit easily together. Sound institutional design wrestles with this problem. Procedures for authoritative decision-making ought to minimize the danger of unjust or misguided outcomes. But they also ought to ensure, so far as possible, that those concerned have a say in the decision, lest their self-direction be unjustly curbed by someone else choosing on their behalf.
Over the years, political philosophy and constitutional scholarship have proposed different recipes for distributing political power within a community, by way of responses to the above concerns. Ignacio Guiffré thinks that the currently most extended recipe – strong constitutionalism – is in need of improvement. He also thinks that its supporting theories harbor fundamental inconsistencies. In defending these claims, this thought-provoking article flags a number of soft spots in contemporary political and legal theory, concerning matters that reach beyond institutional design and speak to the foundations of certain strands of liberalism.
Strong constitutionalism, says Guiffré, has “globally expanded” (Pp. 1273, 1276). In a strong constitutionalist model, simply put, a constitutional court has powers of judicial review of legislation. It has the last word concerning the interpretation and application of a written, entrenched constitution. Guiffré finds that this model – with some variations – is spreading not only institutionally, but also as the ideal supported by much doctrinal thought (section 2). Yet the model is vulnerable to a range of objections, Guiffré claims. Chief among them is the value of democratic deliberation as a source of legitimacy of political decisions. On this family of views, well represented by Jürgen Habermas, political decisions ought to be the result of an “inclusive and dialogical process” (P. 1276), rather than of the “monologic” and “solipsistic” (P. 1290) reasoning of a single agent – the court. It is time to take these objections seriously, Guiffré argues, and aspire to “deliberative constitutionalism”: a model that reconciles the good sense of strong constitutionalism with the main tenets of deliberative democracy.
The article’s strength lies not in its portrait of the weaknesses of strong constitutionalism as such, but in its portrait of the weaknesses of influential philosophical theories that profess to support this institutional model. This is the remit of the article’s central section 3. Guiffré focuses on the works of John Rawls, Ronald Dworkin and Robert Alexy. He shows that, in different ways, they nominally support deliberative democracy but settle for strong constitutionalism’s court-centric framework when it comes to spelling out a concrete institutional proposal. Guiffré resourcefully articulates the inconsistencies in the thought of the three authors. I think his critique cuts more deeply still than he himself demonstrates.
Guiffré is right to point out the tension between Rawls’ defense of deliberative democracy and his claim that the United States Supreme Court is the clearest example of applied public reason. One could usefully probe, furthermore, the extent to which this tension is a manifestation of a tension at the very heart of Rawls’ notion of public reason, a tension also palpable, perhaps, when one endeavors to read together Rawls’ design of the “original position” with his eventual insistence on the “political, not metaphysical” importance of a social consensus.
According to Dworkin, constitutional review improves the democratic quality of political decision-making. Dworkin famously presents courts as a forum of principle and legislatures as a forum of policy. Guiffré (Pp. 1286-92) echoes a broad range of critiques of that distinction, including Habermas’ insistence on the virtues of deliberative self-government. As against Dworkin’s peculiar theories of rights, and his associated claim that courts are institutionally better placed than legislatures to settle questions of rights, Guiffré might have also drawn on recent work that advances a moral argument for the legislature’s institutional capacities. These can be defended by appeal to some of the sound considerations of justice that inspire Dworkin’s own case for judicial review.
Alexy, in turn, proposes “discursive constitutionalism” as an institutionalization of his dual conception of law – as having both a real dimension, related to social facts, and an ideal dimension, related to moral correctness. For Alexy, democracy’s real dimension involves decision-making by majority vote, while its ideal dimension involves decision-making by argumentation. As Guiffré notes (Pp. 1292-96), Alexy’s claim that a constitutional court is closer to the law’s ideal dimension than a legislature, combined with his view of constitutional rights as principles to be applied through “proportionality” analysis, yields an institutional proposal that is difficult to reconcile with the tenets of deliberative democracy. Although Guiffré perceptively problematizes Alexy’s notion of “argumentative representation” (Pp. 1298-99), the critique could have been sharpened by highlighting how techniques of proportionality and balancing are liable to serve as cloaks for unstated moral argument on the part of adjudicative institutions.
It would have been helpful if Guiffré offered more than a glimpse of the model he proposes to put in place of strong constitutionalism. The article only provides a few scattered examples of “institutional alternatives committed to democratic deliberation” (P. 1277), many of them found in Commonwealth countries. They include declarations of unconstitutionality and legislative responses thereto, public audiences, amicus curiae, or the publicity of internal deliberations of constitutional courts, among others. Guiffré (P. 1297) also proposes a “procedural” kind of judicial review, wherein courts’ degree of deference to the norms under scrutiny depends at least partly on their democratic credentials.
Any good article raises important questions beyond those it can afford to answer. This article largely assumes the relative strengths of both deliberative democracy and strong constitutionalism. Although here and there (Pp. 1282-84) we detect the author’s own voice in favor of “dialogical” accounts, for the most part the article simply presents the views on deliberative democracy advanced by others. Why we should care for the “deliberative turn” (P. 1274), indeed, why the latter is a late-twentieth-century twist (P. 1274) rather than a longstanding position with roots in ancient thought all the way through Rousseau, is mostly left unstated. So is the reason why strong constitutionalism ought to become integrated with, rather than altogether replaced by, deliberative democracy. Deliberation on these matters must be left for another occasion.
