From popular distrust to deliberative constitutionalism

Since its origins, constitutionalism has had two main objectives: the limitation of power and the guarantee of rights. It has been concerned with guaranteeing rights through institutional mechanisms that ensure the limitations of government and avoid the tyranny of the democratic majority. Thus, the history of constitutionalism has been part of the so-called liberalism of distrust towards society. However, at the end of the 20th century, democracy took a deliberative turn, proposing a model of political decision-making through an inclusive and dialogic procedure –based on trust towards society. Although deliberative democracy has now become the most predominant model, it has not systematically advanced the analysis of objections to the judicial review. In this context, the aim of this paper is to explore the possibilities and limits of a constitutionalism that is oriented towards resolving the objections to the judicial review on the basis of the premises of deliberative democracy.