Deliberative Democracy and the Institutions of Judicial Review

Abstract

In this book, Christopher F. Zurn shows why a normative theory of deliberative democratic constitutionalism yields the best understanding of the legitimacy of constitutional review. He further argues that this function should be institutionalized in a complex, multi-location structure including not only independent constitutional courts but also legislative and executive self-review that would enable interbranch constitutional dialogue and constitutional amendment through deliberative civic constitutional forums. Drawing on sustained critical analyses of diverse pluralist and deliberative democratic arguments concerning the legitimacy of judicial review, Zurn concludes that constitutional review is necessary to ensure the procedural requirements for legitimate democratic self-rule through deliberative cooperation. Claiming that pure normative theory is not sufficient to settle issues of institutional design, Zurn draws on empirical and comparative research to propose reformed institutions of constitutional review that encourage the development of fundamental law as an ongoing project of democratic deliberation and decision.

The evolution of consensus through coordinated action

“…As δ approaches unity, the internal rules of decision-making may be relaxed, and the threshold for facilitating deliberation lowered; in the other direction, as δ approaches zero, these very same strictures must bind the members under sterner discipline if deliberative outcomes are to be realized. These observations are consistent with the extant theoretical literature (Ferejohn and Pasquino 2002, 2003, Mendes 2013; Zurn 2007). Constitutional courts especially have long been heralded as the exemplars of deliberation’s possibilities (Rawls 2005; Dworkin 1981).…”

Democratic Constitutional Change: Assessing Institutional Possibilities

“…Judiciaries involved in constitutional change through interpretation are therefore already structurally independent of the ordinary process of legislation carried out by electorally accountable politicians. This structural independence is, of course, the basis for proceduralist justifi cations for placing the power of constitutional review in the hands of the judiciary: they are to be, in effect, the unelected guardians of the very procedures of democracy , that is, of the constitutional rules which proceduralists take to warrant the legitimacy of democratic outcomes in the fi rst place (Dahl 1989 ;Ely 1980 ;Habermas 1996 ;Zurn 2007 ).…”

“…With such an approach I hope to avoid objections to typical normative theory as presenting merely an abstract utopia, developed out of a priori considerations of political philosophy and aiming to dictate reality in light of utopian ideals. 2 The proof is in the pudding however: only if the proposed reconstruction both accurately illuminates the ideals motivating actual institutional 1 I have developed this conception elsewhere, leaning heavily but not exclusively on Jürgen Habermas's political philosophy (Zurn 2007 ). 2 I share the methodological antipathy of both Sen and the critical theory tradition to grand ideal theory developed fi rst out of abstract intuitions and thought experiments and only secondarily applied to an ostensibly fallen reality (Habermas 1996 ;Honneth 2014 ;Sen 2009 ).…”

“Globalising Sovereignty”? Pettit's Neo-Republicanism, International Law, and International Institutions

“…Others have suggested that international deliberation may be facilitated specifically by international courts and tribunals. At the domestic level, Christopher Zurn 127 and Jürgen Habermas 128 have argued that judicial review serves deliberative democratic ideals to the extent that it helps to maintain the procedural conditions for deliberative processes to flourish elsewhere. Pettit has also argued that judicial review should be valued for its "editorial" function in democratic decision-making.…”