Political Deliberation and Constitutional Review

Abstract

Political deliberation is a classic component of collective decision-making. Participants of genuine deliberation are willing to argue and open to transform their positions in the light of persuasive arguments. Constitutional theory has borrowed this notion in its effort to reconstruct a justificatory discourse for judicial review of legislation. Constitutional courts were ascribed the pivotal role of implementing fundamental rights in most contemporary democracies and called for a more sophisticated picture of democratic politics. One influential defence has claimed that courts are not only insulated from electoral competition in order to guarantee the pre-conditions of majoritarian politics, but are deliberative forums of a distinctive kind: they are better located for public reason-giving. This belief has remained, from the normative point of view, largely under-elaborated. This article briefly describes how a constitutional court has been conceived in that light, diagnoses the incompleteness of that approach and points to additional elements that are necessary for that theoretical path.