Waldron’s Deficit: Constitutional Dialogues and Their Different Perspectives
As previously argued, Waldron builds his criticism against judicial review on the fact of reasonable disagreement to, furthermore, value the action of the Legislative Branch. Along these lines, when good-faith individuals disagree on matters of principle, it would be better to reach a collective decision at the discretion of representative institutions such as the Parliaments - where there is a larger number of individuals and the possibility of the participation of the agents is greater - than to the Judiciary Branch.
Nonetheless, Waldron errs in assuming that there is a major difference between Courts and the Parliaments, with regards to the popular participation in these spheres. It can be said that these institutions, in fact, operate in distinct ways, and can provide diverse understandings and viewpoints related to controversial fundamental rights and principles.[230] Therefore, for Waldron, “it is just a matter of whose heads will be counted” (Whittington 2000, 698).
The normative argument supporting dialogue theories is, therefore, connected to the idea that, acting in a different way among themselves, favouring the interaction among the political institutions of the community (such as the Judiciary and the Legislative Branches) may have beneficial impacts in the protection of rights, considering that each one of them is capable of providing different perspectives to the debates. Therefore, the existence of the kind of disagreement mentioned by Waldron is not denied; but rather, it is an assumption in accepting that a dialogue contributes for a better identification of the problems and offers possible different solutions. According to Whittington (2000, 697), then,
Institutions also develop distinct missions, cultures, modes of behavior, norms, and such, which affect both the behavior of individuals within those institutions and their collective output.
Not only might a small group reach a different decision than a large group, but a group of judges might reach different decision than a group of legislators (or educators or economists). Even reasonably responsive legislators may behave differently than normal citizens when addressing public issues.Therefore, the distinct format in the composition, organization, operation and accountability of the Judiciary and Legislative Branches results in a different action related to the way sensitive issues related to principle[231] and “viewpoints” common to each institution are handled. Gardbaum points out (2010, 174), for instance, that, under a model of legislative supremacy, there is always the risk of the development of pathologies that consubstantiate “blind spots” unnoticed by representative political institutions, inclined to political minorities. However, this does not deny that Parliaments have full ability to discuss rights in good-faith and prolifically - as Waldron wishes —, nor does it disregard the political influences that bear upon the Courts, as demonstrated by Friedman (2005), but rather, that the peculiar mechanisms of each institution allows them, in the majority of the cases, a special contribution to the constitutional debate, via a broad perspective, considering the several procedural rounds of an institutional dialogue unfolding in history.
In other words, the argument does not have to assume the best capacity of the Courts to debate matters of principle, nor differentiate some themes selected to be debated only by the Parliament or by the Court: it only assumes that different institutions shall possibly offer distinct observations on the same constitutional issues cherished to both, making the constitutional dialogue productive.
According to Whittington (2000, 699) the Judiciary is largely motivated by a different set of concerns than is the legislature. Although judges might disagree among themselves over matters of political principle just as legislators do, legislators may not bother with such issues at all or give them due regard when they do.
Questions such as whether indigent criminal defendants should be entitled to free legal counsel may be of intense interest to those directly involved but are unlikely to rise to the top of a legislative agenda.In this interaction, the Court can be a deliberative catalyser. In this sense, according to Mendes (2011, 212), it symbolizes an effort to make democracy a regime that not only separates majorities from minorities, structures a frequent political competition and selects the winning and losing elites, but is capable also to discern between good and bad arguments. This will not exclude competition, but rather qualify it.
Therefore, a model of inter-institutional dialogues makes possible the occurrence of a productive tension. In this sense, the political legitimacy of the Parliaments is no longer an issue of form only (procedural legitimization), as it would be in the sphere of the supremacy of the Legislative, in order to attract the thematic of fundamental principles - notably individual rights - to the sphere of such legitimacy.
This is not, as pointed out before, denying that the debate about rights is present within the scope of the Parliament[232]; we are only refuting the perverse effect that might result of its sovereignty, considering that “the critical and deliberative potential of the separation of powers is anesthetized by a message that the parliament is at the top of the hierarchical scale and that cannot be challenged”, where “it is difficult for substantive criticism to legislative decisions to have an institutional expression, except via the parliament” (Mendes 2011, 201).
It can be affirmed, therefore, that the existence of a judicial review might make possible a virtuous tension (Mendes 2011, 202). And, in this interaction among different institutional players within the scope of reasoning and debate on rights, these activities are endowed with a greater insightful capacity (Hiebert 2006, 5).
It is important to point out that, in addition to the possibility of offering distinct views about the same issue involving rights under debate, related to a particular theme, the Courts contribute by the means of the articulation of principles that permeate a declaration of rights (Roach 2001, 485), which favours later discussions within the scope of the society and Parliament.
This does not refer, it must be said, to a higher epistemic capacity of judges to prepare this synthesis of arguments as opposed to the legislators, but the peculiarities of their institutional action. On the other side, the Legislative Branch, also as result of its organizational and operational dynamics, offers valuable contributions to solve practical difficulties when implementing constitutional objectives (Roach 2001, 485). Hence,By allowing courts and legislatures to add their own distinctive voice, talents and concerns to the conversation, a more enriching and sophisticated dialogue is produced than could be achieved by a judicial or legislative monologue or a dialogue in which courts and legislatures engage in the same task (Roach 2001, 485).
It is then believed that constitutional dialogues create a broader diffusion of the constitutional debate, not restricting it to a specific institution (such as the Judiciary or the Legislative, under the traditional models of judicial supremacy or the sovereignty of the parliament, respectively). It refers, therefore, to a decentralization of discussions on rights, considering not only the number of individuals that participated in the deliberations on issues regarding principles (as Waldron wishes), but also the number of institutional spaces inaugurated as these debates are set in motion and the unfolded.
Therefore, the judicial review may serve as a vehicle for expanding the scope of a political conflict beyond the confines of a single institution and introducing additional players and perspectives, especially if we recognize that judicial opinions are often not the “ last word” in a political dispute (Whittington 2000, 700).[233]
Considering the above, it is seen that the valuing of constitutional dialogues can be grounded[234] on the expansion of the quality of the debate regarding the rights that possibly allows the existence of a system where such issues are not waiting to be resolved by only one institution.
This is because each institution, like is the case of the Court and the Parliaments, has different operating dynamics, although in fact discussing the same constitutional themes, which causes the emergence of distinct perspectives at the time of the required interaction.[235] According to Bateup (2005, 76), the following are advantages of a concept of a constitutional dialogue that assumes the referred argument:On the normative level, this conception of constitutional dialogue as partnership is indeed worth pursuing as it provides one of the more satisfying accounts of the dialogic judicial role [...]. Recognizing that judges make unique institutional contributions to dialogue in individual cases as a result of the unique features of the adjudicative process, a special and valuable judicial role is thereby proposed. This conception of the judicial role also succeeds in ensuring that the judiciary’s contributions are not privilege over the distinct dialogic contributions that legislatures are able to make.
Having disclosed these facts, it is necessary to also discuss the meaning conferred to the expression dialogue. This is the objective of the following section.
7.4