The Coming of Dialogic Constitutionalism

Let me introduce the coming of “dialogic constitutionalism” by making reference, first, to the Canadian notwithstanding clause, which can be taken as the starting point of the dialogic approach that will be here under scrutiny.¹ The clause was an integral part of the Charter of Rights that was adopted in Canada, in 1982.^{[167] [168] It allowed the national or provincial legislature to insist with the application of its legislation for an additional 5-year period, notwithstanding the fact that a Court found it inconsistent with some of the rights contained in the Charter.}

In fact, I submit, the clause is representative of a series of legal changes that emerged in the last decades, which we may summarize under the rubric of the “new Commonwealth model of constitutionalism” (Gardbaum 2013). The Commonwealth model refers to a diversity of experiences that followed legal reforms introduced not only in Canada 1982, but also in the United Kingdom (1998), New Zealand (1990), or Australia (2004). In South Africa, we also find numerous decisions by the Constitutional Court, which made use of dialogic strategies and devices, from the famous Grootboom case, in 2000,^[169] to Olivia Road (and the promotion of a “mean­ingful engagement”) in 2008.^[170] According to some, this “new model” represents, in the area of constitutional law, what the “mixed economy” does, in economic mat­ters. The new model combines traditional elements of the common law, with renewed declarations of rights. As Jeffrey Goldsworthy has put it, the newly intro­duced mechanisms “offer the possibility of a compromise that combines the best features of both the traditional models, by conferring on courts constitutional responsibility to review the consistency of legislation with protected rights, while preserving the authority of legislatures to have the last word” (Goldsworthy 2003, 484).^[171]

In Latin America, the first Court to engage in these kinds of dialogical practices was the Colombian Court (Rodriguez-Garavito 2011), which was shortly after fol­lowed by tribunals in many other Latin American countries.^[172] Latin American tribu­nals have demonstrated enormous creativity concerning the design and implementation of dialogic mechanisms.

(i.e., in the face of an environmental or social catastrophe)^[174]; (iii) courts that advised the government what decision to adopt in order to comply with its constitutional duties^[175]; (iv) courts that exhorted governments to correct their policies according to prevalent legal standards^{[176] [177]; (v) courts that launched ambitious monitoring mecha­nisms so as to ensure the enforcement of its ruling over time11; or - and this is my favourite example- (vi) courts that challenged the validity of a certain law, because it was passed without a proper legislative debate.[178] I should also add that, even though these innovations are not and should not be seen as limited to cases of social rights and structural litigation, it has been in those cases (this is to say cases that involve massive violation of rights and implicate multiple government agencies), where the practice appeared to be more salient and interesting (Courtis 2005; Fabre 2000; Fiss 2003; Gearty and Mantouvalou 2011; Gloppen 2006; Hunt 1996; King 2012; Rodriguez-Garavito 2011).[179]}

The novelties introduced through dialogic constitutionalism were, and still are, particularly exciting for those working with both constitutional theory and demo­cratic theory. On the one hand, and concerning constitutional theory, these innova­tions are exciting because they allow us to renovate the unending, fatigued discussions on the justification of judicial review and the counter-majoritarian dif­ficulty. In the face of the seemingly insoluble tensions that exist between constitu­tionalism and democracy - tensions that no new theory of judicial review has been able to solve- dialogic constitutionalism brings reasons for hope. It suggests a stim­ulating way for accommodating our commitments to both popular sovereignty and the protection of minority rights.

On the other hand, and in what relates to democratic theory, dialogic constitu­tionalism seems attractive for at least two reasons. First, dialogic theories approach to constitutionalism with an eye placed in democracy: its purpose is to reconcile both values. Second, they do so in a specific way, namely by choosing the perspec­tive of a deliberative democracy, which many of us consider a particularly fruitful approach to democracy.

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