Conclusion
Two models of constitutional framework have been traditionally adopted by Western states, namely, the model of parliamentary sovereignty (in the British Commonwealth) and that of judicial supremacy (in the North American tradition).
The current academic scenario, however, offers the model of constitutional dialogues as a third way to understand the separation of powers, which intends to overcome the dispute of Courts versus Parliament regarding who should hold the power to have the “last word” over sensitive issues such as fundamental rights.What changes with this third-model is the perspective for the analysis of the discussion. According to the model of constitutional dialogues, the so-called “final word” will always be temporary, considering that the theories of dialogue give greater emphasis to the several procedural deliberative rounds regarding these controversies from a historical viewpoint. Looking at the problem in a static manner, as it has been done in the traditional dualism between judicial and legislative supremacy, disregards the potential that constitutional interactions among political institutions might have as far as the protection and development of fundamental rights is concerned.
Thus, it is pointed out that dialogue theories take several shapes, like in the case of internal theories about judicial deliberations and decision-making ( endogenous) - that focus on the method of the decision, where one considers dialogue among judges themselves -, as well as structural theories (exogenous) that work with the perspective of devising institutional blueprints that will facilitate the interaction between institutions or, in other words, analyze the dialogue through a perspective that moves beyond the Court (considering the structural relation between the Court and the Parliament).[238]
The fact remains that, in any of the adopted constitutional theory models, the existence of a constitutional review - or at least, of some sort of protection of fundamental rights by the Courts - although possible, is, however, disconnected from the idea of a final nature ( last word) for its decision.
As pointed out before, any settlement achieved by the Judiciary about a controversial moral or political issue is understood as a single procedural round in a broader inter-institutional debate, to the point of that the action of other institutions is stimulated, even if for the purpose to concur with the referred decision.
Even if the materialization of dialogues, within the sphere of a constitutional framework based on a separation of powers, has been verified, it is necessary a normative argument to demonstrate why this interaction is beneficial for the protection of the fundamental rights and, further, to explain the role of the Judiciary in this dialogue in an attractive way.
It must be pointed out the foundation for this model must not be based on questionable notions such as the epistemic superiority of the Judiciary in relation to the Legislative, as well as its immunity against political influences, something that has been even empirically challenged. On the other hand, the Parliament cannot be also characterized as a locus where individuals or political factions act in a purely selfish manner, deprived of a deliberative capacity with regards to matters of principle.
Along these lines, Waldron discusses that in fact legislators debate about rights. However, given the fact of the reasonable moral disagreement, individuals continue to differ in good-faith on these sensitive issues, even after a discursive procedure has been developed in a wholesome manner. Therefore, given this irresolvable disagreement, the possibility of violation of the rights by Parliament as result of this uncertainty regarding the conformation of the latter and the limits that entail to the operation of the state is explained.
In this status of divergences among agents, Waldron understands that the matter must be resolved via a majority procedure, which is arbitrary regarding the content of the public decision, since it would be a way to guarantee to all the right of participation in the collective shaping of rights that each one has.
This would entail, therefore, a criticism to judicial review, considering that if a disagreement exists, it would be better if a representative institution, such as the Parliament, had the responsibility to resolve it, as opposed to the Courts, that have less individuals.Having said this, I believe that the normative argument that we need in favour of the model of constitutional dialogue must emerge from Waldron’s assumption, which is the fact of the reasonable disagreement. However, it must be noted that distinct political institutions, like the case of the Courts and the Parliaments, are different not only (or mainly) in reference to the number of agents that participate in it - as it seems to be the premise of Waldron’s argument -, but also in reference to their structure and different operational dynamics.
As result of this situation, when they interact by the means of a constitutional dialogue, they make the mutual provision of distinct perspectives regarding the same issues possible, exemplified, in kind, by the debate about rights. They can reciprocally clear “blind spots” of the institutions that they interact with.
Therefore, the normative argument favouring dialogue is anchored on the notion that the interaction among the institutions is beneficial to the debate and to the protection of fundamental rights, since, among other issues, it makes an interchange of distinct perspectives in the discussion on the same issues possible, further expanding institutional channels where the theme is breached.
Hence, the model of constitutional dialogues does not assume that an institution is better skilled than other, but only that the distinct logics in the composition, organization and operation of institutions will probably result in offering different perspectives on fundamental controversies, enhancing the debate when as it is viewed through the angle of broad dynamic involving constitutional conversations (several procedural rounds).
To conclude, as a result of the normative argument above, I believe that the best definition for the term dialogue, for the purpose of dialogue theories, is a broad understanding, which will embrace any modality of interaction among political institutions regarding the mentioned constitutional issues. It refers to the interaction and reciprocal implications that will take place, to a greater or lesser extent, within the constitutional frameworks where there is the separation of powers.
Acknowledgment I would like to thank Thomas Bustamante for a prolific discussion on this topic and helpful comments on a previous draft of this chapter.