Contemporary democracies ascribe to constitutional courts, among other things, the pivotal role of protecting and implementing rights against the background of electoral politics. That task was arguably played, over the past decades, with varying degrees of success. At the same time, these courts have gradually occupied a major political space. This has generated a significant revival of the age-old question about the democratic legitimacy of constitutional review, an arrangement that empowers unelected judges to control decisions by parliamentary representatives. Constitutional theory has thus been in charge of renovating the justificatory discourse that grounds such protagonist judicial enterprise. Past discourses have suddenly become outdated. One creative defence now claims that constitutional courts are not only insulated from electoral competition in order to guarantee the egalitarian pre-conditions of majoritarian politics, but are deliberative forums of a distinctive kind: they would be better located for principled and public reason-giving or, in other words, for exercising authority through the power of good arguments rather than the power of sheer numbers. A strong and coherent language of rights would more likely emerge under such an institutional setting. The justificatory path of these deliberative theories has remained, however, largely under-elaborated and mostly untested. Constitutional Courts and Deliberative Democracy participates in this theoretical enterprise.

The gaps of deliberative-based theories of constitutional adjudication are of various sorts: they lack a sophisticated enough concept of political deliberation to capture the intrinsic and instrumental promises (or pitfalls) of that practice; they do not develop what that ideal entails in terms of an “ethics of judging” in a collegiate setting; they are silent about the micro-institutional devices that may encourage or hinder deliberation; they do not address how deliberation necessarily assumes some minimal contours of a conception of law and legal reasoning; and, most of all, they do not supply a refined measure to assess and hence to compare constitutional courts that are more or less deliberative and the respective implications for judicial legitimacy. By resorting to an evaluative concept of deliberative performance in order to spell out what that deliberative expectation should actually entail, this book intends to fill those normative gaps. Deliberative performance is understood here as a three-stage phenomenon which comprises a pre-decisional, a decisional and a post-decisional phase. Constitutional courts may trigger a particular sort of deliberation in each of these consecutive moments, and a distinct normative benchmark should inform the evaluation of each: respectively, public contestation, collegial engagement and deliberative written decision.
The three normative targets of the overall deliberative enterprise are, then, fleshed out in four steps. The first step advances an ethics of deliberation and highlights which are the specific deliberative virtues that should command each of the three phases. The second step sheds light on the institutional devices that facilitate the pursuit of deliberative performance in its three facets. The third step delineates the legal backdrop of constitutional deliberation and singles out the theoretical commitments towards legal sources that may inflate or deflate the openness of constitutional arguments. Finally, the fourth step examines how the political circumstances of constitutional adjudication bring forward a set of constraints and strategic variables that a court must factor into deliberation for the sake of political survival and effectiveness.

Instead of taking a stand on the old dispute about which institution is more legitimate to have the “last word” on constitutional meaning, a binary straitjacket that still pervades such debate, Constitutional Courts and Deliberative Democracy leaves this question suspended and systematizes the large range of variations that can exist in constitutional courts’ performances instead. Discussions about the potential roles of courts in a democracy, in this perspective, become more sensitive to contexts and to their varying degrees of legitimacy. Consequently, three alternative answers to the old democratic anxiety about constitutional courts are proposed: a modest third-best answer reacts to the democratic objection by pointing to circumstances in which there is no decent structure of electoral representation to fuel the practical and symbolic democratic value of an elected parliament; an underestimated second-best answer asserts that, if we accept judicial review as a historical given, a deliberative court is less vulnerable to the democratic objection than a non-deliberative one; an ambitious first-best answer, finally, contends that a court, rather than a lamentable remedy to a pathological situation (third-best), or a merely regretful historical accident that a political community is forced to tolerate (second-best), can be a constitutive part of democracy, provided this regime is conceived under the more controversial deliberative frame.

Constitutional Courts and Deliberative Democracy
by Conrado Hübner Mendes
Oxford University Press, 2013.

Constitutional Courts and Deliberative Democracy is the Winner of the 2014 Victor Nunes Leal Prize of the Brazilian Political Science Association.