Legal Alienation/“We the People” Outside of the Constitution
I mentioned two structural problems related to the system of checks and balances - one related to its deliberation-deficit, the other related to its deficit in terms of social inclusion.
In what follows I will dedicate some additional time to the discussion of the second problem, which I find particularly relevant and also usually neglected by legal theory. More specifically, I want to explore some of the difficulties derived from having institutions that make it so difficult for the people at large to control their representatives and gain a say in the decision-making process - I will call this a situation of legal alienation.[215] At this point I am not able to say much about this problem in general, but I do want to explore some of its implications for dialogic constitutionalism.The problem of popular exclusion / legal alienation that I am thinking about is similar to the one that Roberto Mangabeira Unger once denounced in his often quoted reference to the “dirty little secret of contemporary jurisprudence”. For him, that “secret” refers to its “discomfort with democracy”, this is to say the “fear of popular action” (Unger 1996).
One possibility, often derived from situations of legal alienation and “fear of majority action” is that instances of inter-branch dialogue, which in principle result appealing and worth-promoting, become for this reason much less interesting. In other words, democratic dialogue loses much of its appeal when it is reduced to a dialogue between elites that are “too far removed” from the people (Madison, Federalist No. 55). We would then trivialize deliberative democracy if we were to celebrate the emergence of new instances of inter-branch dialogue as a triumph of democratic dialogue.
This problem, I believe, seems particularly relevant for contemporary constitutional theory. Think for example about the work of Mark Tushnet and Jeremy Waldron, this is to say the work of two legal scholars who have leading the academic discussion against traditional forms of judicial review.
As we know, both of them have been harsh critics of judicial review and both of them have favored alternative options that in a certain way “recover” the “last word” for legislative majorities (Tushnet 2004, 2008, 2009; Waldron 1999a, b, 2004, 2009). Now, even though I substantially agree with the purposes and motives of their academic undertaking, I want to call the attention about a risk that may affect it. I am thinking about the risk of assuming a basic identity between legislatures and the people at large, when everything suggests the existence of a profound gap between the elected and their electors.Let me explore this claim by using Jeremy Waldron’s work as an example -particularly, his views as developed in his book The Dignity of Legislation (Waldron 1999b). Waldron’s book represents a significant (and necessary) effort to defend the role of legislative bodies, within an academic context that has traditionally been contemptuous and disdainful towards Congress and everything related to it.[216] Part of the merit of the book - and of Waldron’s project, in general- is that it helps to balance a view that became dominant, particularly in the legal academia. In his words, academics have developed “an idealized picture of judging and...a disreputable picture of legislating” (ibid., 2). This is why he tries to “recover and highlight ways of thinking about legislation that present it as a dignified mode of governance and a respectable source of law” (ibid.). In the end, he wants to develop “a rosy picture of legislatures that matched, in its normativity, perhaps in its naivete, certainly in its aspirational quality, the picture of courts -‘the forum of principle’ etc.- that we present in the more elevated moments of our constitutional jurisprudence” (ibid.).[217]
In my view, the difficulty with this approach is that, even assuming a rosy picture of how legislatures work, the representative system remains profoundly unattractive from a democratic perspective.[218] The problems affecting our legislatures do not merely depend on the bad faith, corruption or greediness of legislators.
They derive from a plurality of sources (we have explored some of them), including the virtual absence of popular controls, which tends to alienate the people from ordinary politics. For these and other related reasons -the system has been designed for much simpler societies, composed of few, internally homogeneous groups- I would suggest that our present legislatures are structurally incapable to represent the multiplicity of views and voices existing in contemporary societies.[219] As a consequence, we - meaning those who are convinced about the merits of having an inclusive, deliberative democracy- have not many reasons to celebrate the changes that are seemingly taking place in contemporary constitutionalism. To be more precise: there is nothing particularly exciting in the fact of having contemporary constitutionalism slowly moving away from its traditional picture of pure judicial dominance and towards a different one, where legislatures prevail. Of course, there are democratic reasons that still -and in spite of all the existing institutional difficulties- may make us prefer legislative dominance to judicial dominance. However, the main point remains intact: for those of us who favour deliberative democracy, a system of legislative supremacy may be an improvement, but not a solution. As Karl Marx would have put it, self-government needs more than legislatures: it requires a different type of constitutional organization.[220] In sum, even in the most promising cases, what we find are processes of elite discussion, mostly promoted by political or economic minorities, in their own benefit.To illustrate this with an example, think about the problems that followed the judicial decision in the famous Mendoza case, in Argentina.[221] Mendoza, as we know, represents one of the most remarkable cases of structural litigation and judicial dialogue in Latin America, even though many other examples deserve similar attention.[222]
Initiated in 2004, the case concerned damage stemming from the contamination of the Matanza-Riachuelo River, which passes through Buenos Aires.
Several million people live alongside or near the river. The pollution resulted in massive violation of health and environmental rights. Numerous actors with different levels of authority shared responsibility for the problem, including the National Government, the Province of Buenos Aires, the City of Buenos Aires, and 44 private companies that had dumped hazardous waste into the river. In this context, and facing a situation of perennial political paralysis, the Court undertook to intervene, and it did so in an unexpected and original way. The Court convened a series of public audiences, to which all parties involved were invited.The beginning of the case could not have been more spectacular. The Court recognized the structural nature of the case, refused to limit itself to the binary options of traditional judicial review (either uphold or invalidate a statute), called open public audiences, and engaged in a frank conversation with executive authorities. In considering and revising the proposed clean-up plan, the Court enlisted the help of the public, NGOs, and university experts (rather than abstaining on grounds of lack of technical capacity). It helped to make previously unheard voices audible. However, the entire process has also been subjected to different and serious criticisms. For example, some legal experts described the clean-up process as “clearly top-down, exceedingly centralized” and made the victims feel that “the judicial process” was “closed to them, as it prevented their access to the basin authorities” (Puga 2012, 93).[223] In addition, the dialogic process was also undermined by some significant allegations of corruption. [224]
There are many things to say about this process, but here I just want to mention a couple of them, related to what I called situations of legal alienation. My impression is that the process gained attraction because of its attempts to re-connect some of the most disadvantaged groups of society with the decision-making process. However, in the end the entire process turned to be much less attractive than expected, because it began to develop in the contrary direction. More specifically, the people began to realize that the process continued to be managed “from above,” and that they had actually few chances to gain control over it. I am not claiming that the process was a failure (it was not), or that the Court coordinated it in bad faith (which is not true). What I am saying, instead, is that, given that the institutional system has not been improved, problems related to its elitist features (i.e., “topdown” directives, difficulties to ensure popular controls; hyper-centralization of power) should not be taken as a surprise.[225]
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