Deliberative Democracy and the Countermajoritarian Difficulty: Considering Constitutional Juries

Judicial Reference to Community Values – A Pointer Towards Constitutional Juries?

“…In an article published in 2010, and without awareness of Spector's article, I sketched and defended a proposal for an Australian court, called a Citizens' Court, which employs constitutional juries (Ghosh 2010 ).…”

“…This leads to consideration of constitutional juries . Section 12.3.2 outlines some proposals for constitutional juries and argues that a proposal I made in 2010 is especially promising in realising how constitutional review based on the community's values could enjoy legitimacy (Ghosh 2010 ).…”

Judicial Review, Constitutional Juries and Civic Constitutional Fora: Rights, Democracy and Law

“…What about instituting a more democratic alternative to courtbased constitutional review? This is the fascinating idea explored separately by both Horatio Spector (2003: 331-4;) and Eric Ghosh (2010) in their respective proposals for institutionalizing constitutional review in randomly selected juries of ordinary citizens. Spector envisions a system of constitutional juries, composed of 36-72 randomly selected citizens, called into play by litigants in concrete cases who wish to bypass the normal mode of constitutional review carried diffusely throughout the appellate judicial system.…”

“…Deliberative democratic theorists in particular have proposed a wide variety of new or newly adapted deliberative mechanisms to augment or replace traditional political institutions, involving the participation of ordinary citizens and designed to augment or assume any number of different political functions including: generating informed public opinion, electing representatives, improving legislative procedures, negotiating the shoals of inter-ethnic and intercultural reconciliation, reforming administrative planning and budgeting processes, overseeing bureaucracies responsible for education, policing, health care, energy production and distribution, environmental conservation and carrying out other traditional state functions. 3 This paper aims to evaluate three institutional proposals inspired by deliberative democracy and intended to carry out all or some of the functions of constitutional review usually assumed by a national appellate judiciary in nations with strong traditions of rights-based judicial review: 4 Spector's and Ghosh's separate but overlapping proposals for constitutional review carried out by citizen juries (Spector 2009;Ghosh 2010), and my proposal for using citizen juries in altered processes of constitutional amendment (Zurn 2007: 312-41). In effect, these proposals recognize the importance of the function of constitutional review to constitutional democracy, even as they deny that an appellate judiciary should have the exclusive authority to carry out that function.…”

Introduction

“…12 , which closes the 4th session, Ghosh presses forward some of his earlier arguments in defence of judicial review by constitutional juries (Ghosh 2010 ). The theoretical framework from which he argues is Waluchow's conception of "community's constitutional morality" (CCM) , which consists of those "true moral commitments that are tied to its constitutional law and practices" (Waluchow 2008 , 77).…”