Introduction
This paper aims to develop a normative framework for conceptualizing and assessing various institutional possibilities for democratic modes of constitutional change. Given the ferment of constitutional experimentation witnessed across the globe— especially over the last quarter century—now is a propitious time for developing such a framework.
For the purposes of political philosophy and political theory, I hope such a framework can deepen our broad understanding of the meanings of democracy, of constitutionalism, and of constitutional democracy. I am particularly interested in the prospects for a specific conception of constitutional democracy I label ‘deliberative democratic constitutionalism’ in order to stress two commitments in particular: to democratic processes of constitutional development, adoption and ongoing transformation, and, to a deliberative interpretation of democratic procedures.1 For purposes of political practice, I hope the framework elucidated here can provide assessment criteria applicable to proposals for new institutions for constitutional change, as well as provide a bit of ‘fire in the belly’ to struggles to transform more ossified regimes in the direction of democratic and deliberative constitutionalism—as opposed, say, to juridical or aggregative forms of constitutionalism.The basic methodological orientation of the project—of which this paper is a part—is interdisciplinary, combining research in comparative constitutionalism, political science and normative political philosophy. In particular, the method is a form of normative reconstruction: attempting to glean out of the diversity of constitutional institutions the deep political ideals such institutions embody or attempt to realize. Rather than starting from pure normative content about abstract ideals, principles or values, reconstruction begins with evidence provided by actual constitutional institutions in democratic systems.
Attendant to both historical and more recent institutional innovations, it attempts to reconstruct the normative content such innovations are driven by in such a way that we can get a clearer conception of the specificity of the sub-ideals and principles of constitutional democracy. Finally the normative content reconstructed out of the institutions can be used reflexively for critical evaluation of those very institutions when they don’t or can’t live up to their normative promise. With such an approach I hope to avoid objections to typical normative theory as presenting merely an abstract utopia, developed out of a priori considerations of political philosophy and aiming to dictate reality in light of utopian ideals.[261] [262] The proof is in the pudding however: only if the proposed reconstruction both accurately illuminates the ideals motivating actual institutionalinnovations and provides normatively worthwhile guidance for thought about the institutions of democratic constitutional change will it be worth eating.
Of course, the demands of the reconstructive method are enormous, since one would need to show for each specific conception of an ideal invoked that it is embodied in real political institutions and that it best captures the tendencies of overall institutional history. Because of space and exposition constraints, this paper will not follow the order of presentation—nor present the requisite level of evidence—one would expect from the reconstructive method. The plan is rather to give first, in Sect. 9.2, a thumbnail sketch of the broader ideals of deliberative democratic constitutionalism I believe are at the core of the institutions of modern constitutional democracies. While this paper merely assumes these broad ideals as sufficiently established through reconstruction of actual political reality, I will briefly indicate the general kinds of reasons I take to support them. Then in Sect. 9.3, the paper turns to its main work of articulating an evaluative framework, comprised of six criteria, for assessing various mechanisms of constitutional change.
I argue that democratic forms of constitutional change embody six distinct ideals—operationalizability, structural independence, democratic co-authorship, political equality, inclusive sensitivity, and reasons-responsiveness—and that we can use these ideals to gauge the normative worth of different mechanisms for carrying out such change. I put forward this framework in a conjectural mode: as a set of reconstructive hypotheses about the crucial ideals that are embodied in the institutional designs of constitutional democracies. While these hypotheses are developed through a series of case studies which appear to capture the direction of institutional innovation, the full establishment (or disconfirmation) of each would require much more empirical work. The final Sect. 9.4 is less than conclusive, ensuing rather in a set of open questions that a framework such as this would need to address.9.2