Ideals of Deliberative Democratic Constitutionalism

9.2.1 Basics of the Normative Framework

This paper simply assumes the attractiveness of a particular conception of political normativity labeled ‘deliberative democratic constitutionalism.’ The basic idea here is that political arrangements are legitimate to the extent to which they approxi­mately realize in and through their institutions that normative conception.

While I cannot adequately argue for this conception here—let alone provide the reconstructive evidence such arguments would require—it may help to get a sense of some of the reasons behind claims that will be key once we turn to institutional possibilities for constitutional change. Thus I will explicate and briefly indicate arguments in favor of some of the conception’s building blocks: co-authorship, pro- ceduralism, democratic constitutionalism, and structured deliberation. With these more abstract and philosophical points in hand, we can turn to the institutions of constitutional change and evaluative criteria arising from them in the next section.

9.2.2 Co-authorship

I assume that political arrangements must be democratic (among other qualities) in order to be legitimate. To be democratic, more specifically, political arrangements must—somehow or other and to a greater rather than a lesser degree—allow those persons subject to a polity’s laws to understand themselves simultaneously as the co-authors of those laws. This idea was first most clearly articulated in Rousseau’s conception of freedom as autonomy: in order to be both free and under laws, one must in some sense be the author of those laws one is subject to (Rousseau 1997: Book I, chapter 6). But if individuals are to live with others, with the same laws applying to all, then individuals can only be free to the extent to which they can understand themselves as giving themselves their own laws in a collective process of co-legislation. To be sure, this is a demanding ideal and it is not immediately clear which political arrangements could possibly approximate it in reality. But it seems to me that this conception captures the core of the notion of what self-rule could mean in a context of a polity, a context of many selves whose interactions require a common framework of rules. Furthermore, it gives the clearest articulation of the reason why democracies alone put the value of political equality at their cen­ter. Individuals must be not only equally subject to the laws—as the rule of law tradition insists—but they also must have equal authority over the creation, modifi­cation and extinction of those very laws. Otherwise they are subject to laws they themselves have had no hand in co-authoring: they are rather heteronomous, politi­cally unfree, subject to the will of others.

9.2.3 Proceduralism

One happy solution to the problem of collective co-authorship of common rules would simply be for all subjects to already agree on almost all matters relevant to political decisions before they enter into a process of co-authoring law—in other words, full pre-existing agreement on fundamental values, on the proper priority relations between such values, on the proper policy applications of those values, on the correct ways to understand and assess relevant social facts, and so on.

Given then the circumstances of politics as we know them then—the need for collective decisions and persistent reasonable disagreement on matters of political substance—and given our commitment to democratic co-authorship as a key crite­rion of legitimacy, there is little hope that citizens’ substantive agreement with the outcomes of political processes could be a reliable source for the legitimacy of the political arrangements.^[263] In short, a substantialist understanding of democratic legiti­macy simply does not seem possible, that is, one that gauges the moral worthiness of the outcomes of democratic processes against some determinate substantive ide­als that are independent of the procedures used to arrive at the decision. Citizens of contemporary pluralistic societies simply can’t be expected to agree on such sub­stantive standards. Hence only a proceduralist understanding of legitimacy seems possible, where the moral worth of the outcome of the political process hangs on the fact that the correct (or worthy or reliable or..) procedures have been followed in producing the decision.

9.2.4 Entailments of Proceduralism

The next obvious questions are: which procedures are the correct (or worthy or reli­able or...) democratic procedures and why? Eschewing any ambitious attempt to answer those questions through the articulation of a full political philosophy here, we can note some clear procedural entailments of what has been said so far. To begin, suitable procedures and their institutional realizations will need to ensure the political equality of citizens. This means that all citizens must have some signifi­cantly equal opportunities to influence, in some way or another, the lawmaking process.

Furthermore, the scope of democratic lawmaking cannot be restricted only to policy decisions or to matters of who will represent their interests in such policy matters. Rather, the political equality of citizens must extend beyond matters of immediate policy, to all fundamental matters of the basic laws themselves. Citizens cannot understand themselves as co-authors of the law if their powers do not extend to all of the law, including the law that structures the basic political arrangements— the constitutional arrangements—within which ordinary lawmaking happens.

The exercise of democratic political equality must be, however, more than a one shot deal. Popular sovereignty cannot be exhausted in one originary, revolutionary moment, allowed only to be exercised by the great men of the past. In part this is due to an essential fallibility built into the idea of democracy—the peristent possi­bility that the political process may have failed to properly account for essential considerations in making past decisions—and in part due to the political equality of individuals which must extend across generations—political equality is not reserved only for our ancestors.

Finally, however, because the proceduralist conception of democratic legitimacy puts so much normative stress on procedures, basic procedures that structure the political process itself are special. They set the ground rules for collective decision­making itself. Thus there is an in-principle distinction between ordinary lawmaking and fundamental lawmaking, between the workings of constituted powers and the constitutional structuring of those powers, between the operation of political pro­cesses and the procedural structuring of those processes themselves. Hence demo­cratic proceduralism requires some kinds of formal and / or institutional separation between those exercises of political co-authorship that are functioning according to extant rules and those that are changing those very rules. In short, it requires some form of constitutionalization of democracy. Although I can’t argue for it here, I believe this criterion is best met in a formal distinction between fundamental and ordinary law and an institutional securing of that distinction through moderate forms of entrenchment, that is, moderate ways for making that fundamental law more difficult to change than ordinary law. Revisability entails that even constitu­tional essentials should not be impossible to change in the future.^[264]

9.2.5 Democratic Constitutional Democracy

The conception of legitimacy presented so far insists that political regimes must be, to coin a phrase, democratic constitutional democracies. That is, they must posi­tively structure procedures for realizing democracy, namely the political equality of citizens interpreted as the equality of individuals in a process of co-authoring the laws they are simultaneously subject to—hence constitutionalized democracy.

9.2.6 Structured Deliberation

I have stressed so far the central importance of well-structured democratic proce­dures, but have not said much about the actual procedures. One dominant concep­tion of democratic procedures—captured in both Schumpeter’s minimalist model of democracy and Dahl’s different pluralist model (Dahl 1989; Schumpeter 1943)— has centered on the use of majoritarian voting as an efficient way of aggregating across individual subject’s private interests, thereby finding, and serving through government policy, the largest bloc of identical or overlapping individual, pre­political desires. As is well-known, however, majority rule just as majority rule is not particularly attractive.^[266] To see this, consider the problem of the loser in such a democracy: why should the fact that my private interests are shared by less than half

of the electorate put me under an obligation to serve the interests of the majority? Pure majoritarian decisions that are intended to merely aggregate private interests provide insufficiently compelling reasons for citizens to trust the outcomes of those procedures.

In contrast to the aggregative conception, a deliberative conception insists that democracy is not exhausted by either voting or majority rule. It conceives of voting, in fact, as a temporary caesura to ongoing deliberation and collective decision­making, a caesura required by the need for binding collective decisions under real­istic constraints of time, knowledge and reasonable pluralism. And majority rule is just one threshold for decision making on a continuum between only one person in favor and full consensus. Deliberative conceptions of democracy insist then, to begin with, that good political procedures must encourage deliberation in wide and open public spheres. Of course, this alone doesn’t distinguish deliberative from aggregative models, since even the latter insist that majoritarian aggregation is more accurate with the better information provided by open public spheres—con­sider the traditional epistemic defenses of a free ‘marketplace of ideas’ and a free and independent press.

The distinctive core of the deliberative conception is, it seems to me, the notion of the reasons-responsiveness of government, rather than its responsiveness to vari­ous particular constellations of social, legal or political power. The key is that state action must be responsive to good reasons. Specifically, public reasoning practices among citizens and officials should have some direct or indirect influence over the formation of, decision upon, and execution of governmental policy and action. So deliberative democracy does not just stress reasoned public discussion—it stresses politically relevant and effective reasoned discussion. There must be a constitutive link between public reasoning and the use of government power. Why insist on reasons-responsiveness? It should be understood as a demand of politically equal co-authorship. Political equality on this model is not the equal impact of each sub­ject’s private desires on government policy, but rather the equal part each has to play in collecting, sifting, sorting and evaluating public reasons for public action. In turn (ideally) reason-responsive government action is equally justifiable to each citizen precisely because it is responsive to reasons rather than arbitrary inequalities of power. Hence the procedures of constitutional democracy will need to institu­tionally structure both high quality collective deliberations and ensure that those deliberations have a constitutive impact on the outcomes of government decisions.

One more point from deliberative democracy should be stressed here. Quality reasons must draw from a wide and diverse pool. Although this is in part an epis- temic consideration about the increasing rationality of opinions and decisions with increasing diversity of contents and reasoners, it is also in part a normative consid­eration. In particular, to the extent to which individuals are subject to collective decisions those decisions must take into account the actual and potential effects of those decisions, and those affected must therefore be involved in collecting, sifting and evaluating that evidence. In short, deliberation must not only have real political influence, but it also must be widely inclusive and participatory.^[267]

9.3