Constitutional Dialogue and Deliberative Democracy

In what follows, I will critically evaluate the development of this novel practice. And I want to critically examine this practice precisely because I understand that it can only be defended if it developed in certain particular ways.

Legal theory has already offered many possible definitions for dialogic constitu­tionalism. For Katharine Young, for example, “dialogue describes a practice in which reason-giving courts are able to adjudicate rights, but elected and account­able legislatures are given the final Word on the shape of the obligations that flow from them” (Young 2012, 147). However, I resist this definition because the way in which it seems to be restricted to inter-branch dialogue (I shall come back to this point below). Another interesting definition is the one provided by Bradley Bakker. For him, “constitutional dialogue encompasses the idea that different governmental branches and people interact in ways that shape the dominant views of constitu­tional interpretation over time” (Bakker 2008, 216).^[181] There are at least three fea­tures of this latter definition that I find attractive, namely the fact that it goes beyond inter-branch dialogue; its emphasis in dialogue as an ongoing process; and its focus on constitutional interpretation. In what follows, I shall be thinking about a slightly different version of dialogic constitutionalism, where the idea of “dialogue” aims to preserve the features that make it an appealing notion in our daily language.

According to this definition, the dialogic procedure would be characterized by different important notes, including those of equality (which refers to the equal status of its different participants); deliberation (which refers to the process of exchange of reasons); and inclusiveness (which stresses the idea of deliberation by the people,^[183] under the assumption that the entire process gains in impartiality if all the potentially affected intervened in that conversation).^[184] In this presentation, I will put a particular stress in this latter point (inclusiveness), and this will not be because I assume that inclusiveness is more important than the other two values, but rather because I think that most reflections on the topic have been merely restricted to “interbranch dialogue” (we shall come back to this point below).^[185] In addition, the collective process would refer to an ongoing conversation (which would basically mean that courts would not have the authority to pronounce the “last institutional word”); that is developed in public and it is restricted to issues of public morality (which means that the collective dialogue would not be concerned with issues related to our private moral life)^[186]; and that does not depend on the discretionary will of one of its participants (in other words, the dialogic process is promoted, rather than discouraged or simply authorized, by the institutional system, which takes the promotion of collective dialogue as one of its distinctive features).

I have said that my definition of constitutional dialogue tried to build from, and at the same time refine, the prevalent practice.

6.3