Structural Problems: The System of Checks and Balances as an Exclusive Machinery
Herein, I shall explore some “structural” difficulties faced by the new dialogic practice of constitutionalism.[192] Of course, there are different understandings of what “structure” means, and how to approach to “structural” problems.
A Marxist approach, for example would recommend us to first focus our attention on the economic or material basis of society; and feminist critiques would suggest us to pay privileged attention to the absence of certain voices or the domination of certain viewpoints in our dialogic experiences, (see, for instance, Phillips 1998; Young 2001; Young 2002; Williams 2000). These kinds of criticisms, I believe, are absolutely relevant for those interested in democratic dialogue, and must be taken in serious consideration. Herein, however, I will only pay attention to a small portion of the different structural problems that merit attention. In what follows, in my references to “structural” problems I will only be thinking about our institutional structure; and in my references to the institutional structure I will mainly be referring to the existing system of checks and balances.The reasons of my choice should not be difficult to understand. In part, my choice has to do - simply- with my area of academic expertise. Above all, however, my choice is connected with the fact that the system of checks and balances represents the core of the institutional organization in the Americas, and also one that is gaining growing influence in other parts of the world (even in Europe).[193]
I have two main criticisms related to the system of checks and balances in its relation to dialogic constitutionalism. The first objection says that the system of checks and balances has been designed in order to prevent a civil warfare, rather than promote a democratic debate. This fact, I believe, explains why the system is not well prepared and equipped to ensure collective deliberation over time.
It can do so, but only as a result of the occasional, informal and discretional will of certain public officers. The second criticism springs from the fact that the system of checks and balances is based on a distrust of majority ruling and a strong preference for internal or inter-branch controls, rather than external or popular controls. This fact, I believe, explains why the system is not well prepared and equipped to ensure a properly inclusive deliberation. It is worth noting that these two main criticisms are directly connected to what I consider to be the two main requirements of a deliberative democracy, namely “debate” and “inclusion.” In addition, I want to remark that my criticisms will expose the existence of a worrisome tension within our constitutional structures, namely a t ension between an old machinery of power and a renewed system of rights.The basic point is this: We are trying to obtain from the system of checks and balances something (an inclusive democratic deliberation) that the system is not (was not) well-prepared to provide. It was created for a different purpose, namely contain social warfare in a situation of social unrest and “oppressive legislation” by state legislatures. This goal helps understand the main characteristics of the system of checks and balances including, for instance, the following two: provide defensive tools to members of the different branches, so as to prevent mutual encroachments; and detach public officers from the people at large, so as to prevent undue social pressures upon the former. Not surprisingly, the created system seems much better equipped to reduce the risk of majority (legislative) oppression than promote any kind of inclusive debate.
In order to support my claims about the tensions between the system of checks and balances and deliberative democracy, in what follows I will pay attention to the public reasons offered by the creators of the system in its defence, and also to their underlying assumptions about democracy. Later on, I will also suggest that the actual practice of the system ratifies my critical claims.
6.5
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