Introduction

Prof King will introduce and moderate the panel along with Prof Levy.

Constitutional Deliberation in the Legislative Process

This paper considers how constitutional norms structure legislative deliberation. Its authors argue that the fact that legislators are ‘“responsible constitutional actors” places them under an obligation … to deliberate about … constitutional rules when deciding whether to pass legislation’. However, a complication is that some such rules are not judicially enforceable and may also be vague or unsettled. Considering Australian examples of legislative responses to organised crime and terrorism, the authors outline how an improved ‘broader deliberative process’ that legislatively takes account of constitutional perspectives might look.

In Defence of Empirical Entanglement: The Methodological Flaw in Waldron’s Case against Judicial Review

Jeremy Waldron’s sustained critique of judicial review has provoked a series of responses endeavouring either to defend that institution or to join in the critique with renewed zeal. All of the responses to date accept the methodological premise of Waldron’s intervention – that judicial review may be defended or critiqued in abstract normative terms once certain assumptions about a society’s governing institutions and political traditions hold. This response challenges that consensus and tries to change the terms of the debate. The main contention is that the moral justifiability of judicial review is a mixed normative/empirical question that cannot be satisfactorily answered by confining the empirical component to a set of very broad assumptions and then proceeding in a purely normative vein . This is obviously true (as Waldron concedes) of immature democracies where problems with the functioning of representative institutions, including the quality of deliberation in such institutions, make it impossible to generalize about the relative merits of judicial versus legislative attention to rights. But it is also true of Western liberal democracies – Waldron’s main focus – because even in these societies the satisfaction of his assumptions is not uncontroversial and depends on the context-sensitive and historically aware methods that Waldron says he wants to avoid.

Deliberative Federalism

Haig Patapan examines a theory of ‘deliberative federalism’ that claims ‘federalism, in giving political and legal authority to disparate voices within the federal state, can make institutional room for deliberation’, which in turn might have salutary effects on the protection of rights in federal societies. Considering evidence from the United States, they reach the conclusion that any pro-deliberative effects of federalism are uneven, as ‘federalism will in some cases permit what appear to be unjust institutions and practices to persist, and indeed thrive’.

Squaring the Circle? Bringing Deliberation and Participation Together in Processes of Constitution-Making

This chapter looks at recent participatory exercises in constitutional reform and aims to help further define and tailor standards for deliberative democratic good practice in constitution-making. Among the models of popular participation which the authors discuss are constitutional referendums such as Scotland’s independence referendum; citizens’ assemblies such as those set up in British Columbia, the Netherlands and Ontario; and constitutional conventions such as in Iceland and Ireland. The chapter aims to disentangle the principles required by, respectively, participatory and deliberative processes in constitution-making. While there is significant overlap between them (such as conditions of inclusiveness and transparency), important differences exist. The chapter discusses the turn towards deliberative mechanisms in constitutional change and recent seminal examples. It then draws out some of the problems in connecting small group deliberation to polity-wide participation. The authors conclude with some thoughts about how these two strands in popular constitutional engagement might be better connected.