Deliberative Constitutionalism “Without Shortcuts”

The publication of Lafont’s book is an excellent opportunity to reflect on a constitutional trend that has spread in recent years and is now called deliberative constitutionalism. Deliberative constitutionalism brings together distinguished scholars to offer a common critique of the elitist features of contemporary constitutional theory. In this context, I examine the implications of Lafont’s theory of judicial review for deliberative constitutionalism. My argument is that Lafont fails to distance herself from the majority of scholars who advocate a deliberative vision in the realm of democracy, but maintain a strong vision in the realm of constitutionalism.

“Minipublics in Robes: A reflexive republican perspective of judicial review”

Among the diverse and valuable publications made on political philosophy in times of pandemic, the book Democracy without shortcuts written by Cristina Lafont (Oxford U.P., 2020) deserves a privileged place on our shelves. The clarity and precision of her proposals leads not only to a reasonable, but mainly exciting, defense of a participatory deliberative democracy. Immersed in this stimulating theoretical atmosphere but inspired in a reflexive republican conception of deliberative democracy, I propose here a different perspective and application of minipublics, that differs from the one indicated by the author.

Global Participatory Democracy ‘Without Shortcuts’

In this paper, I will start where the recent book by Cristina Lafont (2020) ends, namely with the claim that excluding people's participation in decision-making is not justified. The aim of this paper is to ask what a participatory deliberative democracy would look like in the global realm. In particular, I will explore the question of whether it is possible to directly apply Lafont's participatory conception of deliberative democracy to get global democracy, or whether, in contrast, a more sophisticated conception of democracy beyond states is necessary, involving, for example, crowdsource mechanisms or the use of mini-publics to engage people in global deliberation.

A Critique of ‘Citizens in Robes’

Lafont argues that judicial review of primary legislation is one valuable means for citizens to participate in constitutional decision-making. By allowing minorities to challenge majoritarian legislative decisions, judicial review enables citizens to exercise their democratic right to partake in the determination of the meaning of the laws. The resulting picture, Lafont claims, is better than its alternative, for judicial review spares us from what would otherwise be a system of government where a large number of citizens blindly defer to the law. I want to challenge this argument. Even if it was empirically clear that the judicial pathway poses less challenges to the political equality of citizens than the legislative one, the advantages on which Lafont grounds her justification of judicial supremacy are not features of judicial supremacy but of the ordinary functioning of law. It is often overlooked how case-law, rules of statutory or common law reasoning and the establishment and reversal of precedent are tools already in place to do the up-dating, participatory work that Lafont wants judicial review to enable. The question of institutional design that seems at stake, and remains to be addressed in the book, is who ought to ultimately defer (majorities or minorities) and why deference to legislative or judicial decisions should be regarded as ‘blind’ in one case but not in the other.