Deliberative Constitutionalism

Abstract

Deliberative constitutionalism incorporates insights from constitutional and deliberative democratic theory in order to present a more complete picture of constitutional practice than either of its source disciplines can offer. This chapter identifies some of the hybrid theory’s novel contributions. Kong and Levy claim that a constitution’s overriding objective should be to create an institutional framework for rigorous and inclusive public deliberation that helps a polity work through specific social controversies (e.g. same-sex marriage). The authors therefore argue that the hybrid theory brings to the general normative claims of deliberative democratic theory a specifically institutional and legal focus. They also argue that deliberative constitutionalism redirects longstanding debates in constitutional theory away from the standard courts–legislatures axis. The chapter examines what deliberative constitutionalism might entail for an assortment of actors (e.g. judges and ordinary citizens) and constitutional features (e.g. domestic and international rights, and federalism) in democracy and governance.

Political Representation as Interpretation: A Contribution to Deliberative Constitutionalism

“…DC is a tag for a recent theoretical endeavour comprising at least three ideas (Kong and Levy 2018; Levy et al 2018; Worley 2009). First, it is a strategy for dissolving the tensions between democracy and constitutionalism (Worley 2009).…”

“…First, it is a strategy for dissolving the tensions between democracy and constitutionalism (Worley 2009). Second, deliberation should influence processes of constitution‐making, and constitutions should structure procedures of lawmaking and constitutional change (Kong and Levy 2018, 626). Finally, while there is an increasing interest in considering alternative forms of discourse generally used by nonjudicial institutions, deliberation, legal reasoning, and adjudication are seen by some as analogous or mutually supportive argumentative and decision‐making procedures (e.g., Dyzenhaus 2018, 56).…”

“…Deliberative constitutionalism (DC) is a recent response to the scholarly trend concerned with overcoming the constitutionalists' general neglect of the deliberative turn in political theory; it seeks to improve the rather unsystematic ways in which deliberative democrats have theorised constitutional matters (Kong and Levy 2018; Levy et al 2018; Worley 2009). Deliberative constitutionalists stress that deliberation should influence processes of constitution‐making, and that constitutions should structure deliberative procedures of ordinary lawmaking and constitutional change.…”

Democracy and constitutional reform: Deliberative versus populist constitutionalism

“…Deliberative constitutionalism is a term, like populist constitutionalism, that has been gaining usage (Elstub and Pomatto 2018;Kong and Levy 2018). The core idea is to understand the democracy part of liberal democratic constitutionalism in deliberative terms.…”

The Cambridge Handbook of Deliberative Constitutionalism

“…The epithet 'deliberative constitutionalism' has a complex genealogy (Kong and Levy 2017), but seems to draw together at least two strands of literature. The first is the ongoing debate among political theorists, philosophers and scientists on the conditions that promote or hinder democracy.…”