Conclusions

The recently adopted and developed dialogical devices promised the people at large to re-gain a central role in the process of constitutional creation and interpretation. Ideally, one could reasonably assume, these dialogic devices would foster demo­cratic deliberation, thus reducing the influence of interest-groups politics.

Now, those initial, optimistic notes, must be balanced with other criteria we have been exploring in the following pages. For instance, I maintained that in most coun­tries -and most notably in Latin American countries- we have significantly reno­vated and reinvigorated our commitment to rights, while kept the core of our institutional system (this is to say the mechanism of checks and balances), funda­mentally unchanged. As a consequence, many of the old vices and elitist features of the system are still in place; while many of the promises of dialogic constitutional­ism (particularly in what concerns the enforcement of social rights) appear to be still too dependent on the good will and discretion of those in charge of promoting it.

These unfortunate circumstances mostly affect countries that have not intro­duced any formal changes in their constitutional organization, so as to facilitate dialogue - affecting Latin American countries in particular, given that most of them still retain a hyper-centralized institutional system. However, I should say that things do not look substantially different if we focus our attention on the New Commonwealth Model of Constitutionalism, where attractive and formal institu­tional changes were actually adopted. And this is so because - everywhere- the representative system seems to have become in control of a political elite and also increasingly subject to the demands and pressures of interest groups. “We the peo­ple” still remain outside of the Constitution, fundamentally incapable of managing and controlling our own public affairs.

Now, my worries about the perceived limits of dialogic constitutionalism should not be taken as a defence of the institutional status quo. This prevalent system causes the institutional problems that dialogic constitutionalism has been trying to overcome without much success. We need to replace a system of checks and bal­ances that obstructs rather than promotes public collective dialogue; and we need to transform this institutional system that has become prey of political and economic elites. In the face of these challenges, the modest improvements offered by the new dialogic model of constitutionalism can be celebrated as small steps in the right direction.

Acknowledgment This is a revised and substantively shortened version of my article “We the People Outside of the Constitution,” which I published in Current Legal Problems, vol. 67, n.1, 1-47.