‘We the People’ outside of the Constitution.

The Dialogic Model of
Constitutionalism and the System of Checks and Balances
Roberto Gargarella
1
Intoduction
In 2004, a group of residents of the shantytown Villa Inflamable, in Argentina, filed a claim
against the National Goernment, the Goernment of the !roince of "uenos Aires, the
Goernment of the Autonomous #ity of "uenos Aires, and 44 corporations$ %hey lied in
the basin of the Riachuelo Rier, and they complained about the highly contaminated ban&s
of the rier, which affected the health and well'being of appro(imately )$* million people$
In 200+, the ,so called- Mendoza case reached the .upreme #ourt who, in a surprising series
of decisions, called for open public hearings/ ordered the national authorities to submit a
clean'up plan for the rier basin/ and re0uested reports for the businesses inoled detailing
the measures they would ta&e in order to reerse pollution in the area$
2

Also in 2004, the ,then- remar&able #olombian #onstitutional #ourt handed down what was
described as 1its most ambitious ruling in its two decades of e(istence2,
)
namely the %'02*
decision, concerning the situation of forced displacement that affected millions of people in
#olombia$
4
In addition, the #ourt defined a series of structural measures, which included
orders to the national goernment to present a coherent emergency plan and also secure the
1essential core2 of the rights to food, education, health care, land and housing of the people
affected$ In the same year, in another surprising decision, the #ourt challenged the so'called
Anti-terrorist statute ,which represented a crucial part of the 3 then recently re'elected and
e(tremely powerful 3 !resident 4laro 5ribe2s political agenda-$ %he #ourt attac&ed the law
as a conse0uence of the inade0uate process of political deliberation that surrounded its
enactment6
*
more than a do7en of the representaties who oted for the polemic statute had
changed their iews on the topic from one day to the ne(t, without giing any public
e(planation about this change$
+
1
#8NI#9% ,"uenos Aires-$ I want to than& :imitrios ;yritsis, <irginia =antoualou, Albert >eale and to an
anonymous referee for the comments they made to the paper, and also to the colleagues and public that
participated at the 5#? #urrent ?egal !roblems lecture, in =arch 2014, when I first presented it$ I also want to
than& the support I receied from a ?eerhulme grant, which allowed me to complete this research$
2
1=endo7a, "eatri7 .ilia y otros c@9stado Nacional y otros s@daAos y perBuicios ,daAos deriados de la
contaminaciCn ambiental del RDo =atan7a'Riachuelo-, CSJN 20@+@200+$ ?eticia "arrera 1!erforming the
#ourt6 !ublic Eearings and the !olitics of Fudicial %ransparency in Argentina,2 ,201)- )+ PoLAR 2/ !aola
"ergallo 1Fustice and 9(perimentalism2 SELA 200* Ghttp6@@digitalcommons$law$yale$edu@ylsHsela@44@I
accessed 1J :ecember 201)$
)
#Ksar RodrDgue7'Garaito, 1"eyond the #ourtroom6 %he Impact of Fudicial Actiism on .ocioeconomic
Rights in ?atin America2 ,2011- LM Texas LR 1++M'1+ML$
4
#orte #onstitucional N#$#$O N#onstitutional #ourtO, Fanuary 22, 2004, Sentenia T'02*@04$
5
%o state this, howeer, does not mean to affirm that this was ,or should hae been- the only ,or main- reason
employed by the #ourt in order to defy the statute2s alidity$
+
.imilarly, see the "ra7ilian .upreme #ourt and its first public hearing, which fostered a national debate on
the right to life and the right to personal dignity$ ?eticia #esarino P Naara ?una, 1%he embryo research debate
in "ra7il6 Qrom the national congress to the federal supreme court,2 ,Soial Studies of Siene 2011-
Ghttp6@@sss$sagepub$com@content@early@2010@12@)0@0)0+)12J10)L++)J$full$pdfI accessed 12 Fanuary 2014/
=arBorie #orrRa =arona P =arta =endes da Rocha ,201)-, 1!ublic Eearings of the "ra7ilian .upreme #ourt6
enhancing its democratic legitimacyS2, ,IPSA 201)- Ghttp6@@paperroom$ipsa$org@papers@iew@1+0+)I accessed
20 :ecember 201)$ %he debate gathered more than 20 e(perts and other representaties of the ciil society,
1
All these eents refer to recent, innoatie and une(pected decisions by the .upreme or
#onstitutional #ourt of different ?atin American countries, related to issues of utmost public
importance$ %hey represent e(citing legal noelties, which seem capable of changing our
traditional institutional practices, and which re0uire from us a fresh theoretical approach$
?i&e some other academics in ?atin America, I receied these deelopments with great
enthusiasm$ %hese noelties fit well with some of our strongest academic commitments6 our
obBection to traditional forms of Budicial reiew/ our defence of social rights/ our indication
of deliberatie democracy$ ?et me Bust add that we did not embrace those iews simply
following a certain academic fashion$ In Argentina, for e(ample, many of us began to adhere
to those ideals in the early 1ML0s, at the end of the last dictatorship, which ruled the country
since 1MJ+$
J
%hen, if we challenged traditional models of Budicial reiew, this was not
because we were in the search for the best aailable theory of constitutional adBudication,
but rather because we were particularly interested in stressing the alue of collectie self'
goernment$ .imilarly, we defended social rights because we alued not only indiidual
autonomy but also social Bustice, which we assumed had also been seriously dishonoured in
preious years$ =oreoer, if we adhered so strongly to the ideal of deliberatie democracy,
this was so because we wholeheartedly reBected many of its well'&nown alternaties$ In
particular, we did not want to reduce democracy to a pure confrontation between different
interest'groups neither understand politics merely as a way of aggregating preferences$
L
After a period of terror and brutality, we wanted to insist on the alues of democratic
persuasion and argumentation$ Gien this historical bac&ground, we receied the emergence
of dialogic forms of constitutionalism with ferour ,een more, I would add, ta&ing into
account that during many years, our defence of dialogical solutions had been responded with
scepticism or condescension-$
M
8f course, the phenomenon I am referring to is not confined to ?atin America$ All oer the
world, constitutional theory began to e(perience deelopments of this &ind, which so far
hae been studied under the rubric of dialo!i onstitutionalism, dialo!i "ustie or dialo!i
"udiial re#ie$$
10
=ost of these studies began in the early 1ML0s, after #anada adopted its
#harter of Rights, in 1ML2$
11
As we &now, section )) of the #harter included the so'called
1notwithstanding2 or 1oerride2 clause, which allows the national or proincial legislature to
insist on the application of its legislation for an additional fie'year period, notwithstanding
the fact that a #ourt found it inconsistent with some of the rights contained in the #harter$ In
and was the obBect of widespread public attention$
J
I am mainly thin&ing about people who wor&ed close to legal philosopher #arlos Nino, and tended to
embrace his understanding of democracy and constitutionalism$ .ee, for e(ample, # Nino, T%e Et%is of
&uman Ri!%ts ,85! 1MM1-/ 'undamentos de (ere%o Constituional ,Astrea 1MM2-/ T%e Constitution of
(eliberati#e (emora) ,Tale 5! 1MM+-$
L
F 9lster, 1%he =ar&et and the Qorum,2 in F 9lster P A Eylland ,eds$-, 'oundations of Soial C%oie T%eor)*
,#5! 1ML+-$
9
.ee :aniel "onilla, Constitutionalism on t%e +lobal Sout%, T%e Ati#ist Tribunals of India* Sout% Afria* and
Colombia* #5! 201)/ N :orsen, = Rosenfeld, A .aBC, . "aer, Com-arati#e Constitutionalism* Gale #engage
2010-$
10
=ar& %ushnet ‘:ialogic Fudicial Reiew2 ,200M- +1 Ar., L, Re#, 20*$ :ialogic constitutionalism would
stand to Budicial dialogue as the genus stands to its species$
11
.ee ;atharine Toung, Constitutin! Eonomi and Soial Ri!%ts ,85! 2012-, 14L$ .imilarly, ?uc %remblay,
1%he ?egitimacy of Budicial reiew6 %he limits of dialogue between courts and legislatures2 ,200*- ) Int/l J,
Const, L, +1J, 1$
2
principle, this innoation appeared to represent only a modest legal deelopment, but in fact
it immediately triggered a fabulous academic debate$
12

In sum, we are facing some interesting noelties in constitutional theory and practice, which
seem to hae the capacity to challenge traditional ideas and assumptions concerning the
system of separation of powers, the organi7ation of chec&s and balances, and more
particularly Budicial reiew$
1)
In general, the legal community hae receied these noelties
with great enthusiasm$ .o, ta&ing this shared enthusiasm as a point of departure, my aim in
this article will be to critically assess the recent deelopment of this dialogic practice 3a
practice that I support and feel attracted to$ I will illustrate my comments through e(amples
mainly coming from ?atin American, which is the region that I &now more$ Eoweer, I
assume that my comments will be in principle applicable to countries beyond that region, as
far as their share some of the main elements of its 1basic institutional structure,2 namely a
representatie democracy, with separation of powers and a system of chec&s and balances$
In my opinion, and beside the genuine reasons we hae to celebrate the coming of dialogic
constitutionalism, we hae also reasons for concern, particularly if we are not willing to
modify the basic structure of the system of chec&s and balances in which it is usually based$
In my iew, the system of chec&s and balances was proposed in the conte(t of diided and
une0ual societies, in order to channel the class'conflicts e(isting within them$
!"plaining Dialogue. The Coming of Dialogic Constitutionalism
%he #anadian notwithstanding clause, which can be ta&en as the starting point of dialogic
constitutionalism,
14
emerged within a conte(t of legal changes that we may refer to as the
1new Common$ealt% model of constitutionalism2$
1*
%he Common$ealt% model refers to a
diersity of e(periences that followed legal reforms introduced not only in #anada ,1ML2-,
but also in the 5nited ;ingdom ,1MML-, New Uealand ,1MM0-, or Australia ,2004-$ In .outh
Africa, we also find numerous decisions by the #onstitutional #ourt, which made use of
dialogic strategies and deices, from the famous +rootboom case, in 2000,
1+
to 0li#ia Road*
in 200L$
1J
According to some, this 1new model2 represents, in the area of constitutional law,
what the 1mi(ed economy2 does, in economic matters$ %he new model combines traditional
elements of the ommon la$* with renewed declarations of rights$ As Feffrey Goldsworthy
12
#hristine "ateup, 19(panding the #onersation6 American and #anadian 9(periences of #onstitutional
:ialogue in #omparatie !erspectie2 ,200J- 21 Tem-, Int1l L, J, 1/ !eter Eogg P Allison "ushell, 1%he
#harter :ialogue "etween #ourts and ?egislatures2 ,1MMJ-, )* 0s!oode &all L, J, J*/ !eter Eogg/ Allison
"ushell P >ade >right, 1#harter :ialogue Reisited, '8r much Ado About =etaphors2 ,200J-, 4* 0s!oode
&all L, J, 1/ =ar& ?angford, Soial Ri!%ts Juris-rudene2 Emer!in! Trends in International and Com-arati#e
La$ ,#5! 200M-/ #hristopher =anfredi P Fames ;elly, 1.i( :egrees of :ialogue6 A Response to Eogg and
"ushell ,1MM0-, )J 0s!oode &all L, J, *1)/ Andrew !etter, 1%wenty Tears of #harter Fustification6 Qrom
?iberal ?egalism to :ubious :ialogue2 ,200)- 3N4 La$ Journal *2/ ;ent Roach, 1:ialogic Fudicial Reiew
and its #ritics2 ,2004- 2) Su-reme Court La$ Re#ie$* 4M/ =ar& %ushnet, 5ea. Courts* Stron! Ri!%ts
,!rinceton 5! 200L-$
1)
In this presentation, I will not be concerned about so'called 1internal2 deliberation, within the #ourt$ Fohn
QereBohn, P !as0uale !as0uino 1#onstitutional #ourts as :eliberatie Institutions2, in >oBciech .adurs&i ,ed$-,
Constitutional Justie2 East and 5est ,;luwer 2012-, <irgilio A$ :a .ila, 1:eciding without :eliberating2
,201)- 11 I,C0N$ ), **J'*L4$
14
=ar& %ushnet stated6 1I ta&e dialogic Budicial reiew to hae been inented in the #anadian #harter of
Rights in 1ML22 ,%ushnet n 10, 20*-$
1*
.tephen Gardbaum, T%e Ne$ Common$ealt% Model of Constitutionalism ,#5! 201)-$
16
2001 ,1- .A 4+ ,##-$
17
200L ,)- .A 20L ,##-$
3
has put it, the newly introduced mechanisms 1offer the possibility of a compromise that
combines the best features of both the traditional models, by conferring on courts
constitutional responsibility to reiew the consistency of legislation with protected rights,
while presering the authority of legislatures to hae the last word2$
1L
In ?atin America, the first #ourt to engage in these &inds of dialogical practices was the
#olombian #ourt,
1M
which was shortly after followed by tribunals in many other ?atin
American countries$
20
?atin American tribunals hae demonstrated enormous creatiity
concerning the design and implementation of dialogic mechanisms$ %he alternaties that
they e(plored were multiple ,I already mentioned some of them in the aboe e(amples-$ >e
hae i- courts that organi7ed -ubli audienes with goernment officers and members of
ciil society, trying to obtain e(tended agreements, gain legitimacy for their decisions and@or
obtain better information and arguments in the face of comple( cases/
21
ii- courts that
ordered the national goernment to present a coherent plan ,i$e$, in the face of an
enironmental or social catastrophe-/
22
iii- courts that ad#ised the goernment what decision
to adopt in order to comply with its constitutional duties/
2)
i- courts that ex%orted
goernments to correct their policies according to prealent legal standards/
24
- courts that
launched ambitious monitorin! me%anisms so as to ensure the enforcement of their rulings
oer time/
2*
i- courts that re6uested re-orts to public or priate institutions/ or 3and this is
my faourite e(ample' ii- courts that challenged the alidity of a certain law, because it
was passed without a proper le!islati#e debate$
2+
I should also add that, een though these
innoations are not and should not be seen as limited to cases of social rights and structural
litigation, it has been in those cases ,this is to say cases that inole massie iolation of
rights and implicate multiple goernment agencies-, where the practice appeared to be more
salient and interesting$
2J

1L
Fames Goldsworthy, 1Eomogenising #onstitutions2 ,200- 2) 0xford Journal of Le!al Studies 4L4$ .ee also
,%ushnet n L/ Gardbaum n 1+, 2*'2J-$
19
RodrDgue7'Garaito ,n )-$
20
.ee #orte #onstitucional N#$#$O N#onstitutional #ourtO, Sentenia #'222, 1MMJ, engaging into an argument
related to the importance of haing proper legislatie debates$
21
.ee, for e(ample, a decision by the "ra7ilian .upreme #ourt, =ay 2M
th
, 200L, concerning the "iosafety
?aw$
22
.ee, for e(ample, a decision by #olombian #onstitutional #ourt in #orte #onstitucional, Fanuary 22, 2004,
Sentenia %'02*@04$
23
.ee, for e(ample, a decision by the Argentinean .upreme #ourt in #orte .uprema de Fusticia de la NaciCn,
L@L@200+$ 1"adaro, Alfonso <alentDn, c@AN.9. s@reaBustes arios$2
24
Ibid$
25
.ee, for e(ample, a decision by the #olombian #onstitutional #ourt in Fudgement %'02* of the #olombian
#onstitutional #ourt$ 8n the topic, see also Neal ;atyal, 1Fudges as Adicegiers2 ,1MML-, *0 Stanford La$
Re#ie$ +, 1J0M'1L24/ Ronald ;rotos7ins&i, 1#onstitutional Qlares6 8n Fudges, ?egislatures, and :ialogue2
,1MLM- L) Minn, L, Re#, 1/ Abner =i&a 1>hy Fudges .hould Not "e Adicegiers$ A Response to !rofessor
Neal ;atyal2 ,1MML- *0 Stanford La$ Re#ie$ 1L2*$
26
.ee, for e(ample, a decision by #olombian #onstitutional #ourt in #orte #onstitucional, Sentenia C'
J40@1)$ 8f particular interest, for the purposes of this article, is the right to 1meaningful engagement,2 in the
way it was deeloped by the .outh African #onstitutional #ourt$ .ee, for e(ample, .andra ?iebenberg,
1:eepening democratic transformation in .outh Africa through participatory constitutional remedies,2
manuscript ,2014-, 5niersity of .tellenbosch ?aw Qaculty$
27
#hristian #ourtis, 19l caso 1<erbits&y26 Nueos rumbos en el control Budicial de la actiidad de los poderes
politicosS2 in #$9$?$.$ ,ed$- Cola-so del sistema arelarios ,.iglo VVI 200*-/ #ecile Qabre, Soial Ri!%ts
under t%e Constitution, +o#ernment and t%e (eent life ,85! 2000-/ 8wen Qiss, T%e La$ as it Could be
,NT5 !ress 200)-/ Feff ;ing, Jud!in! Soial Ri!%ts ,#5! 2012-/ # Gearty P < =antoualou, (ebatin!
Soial Ri!%ts ,Eart 2011-/ Roberto Gargarella, 1:eliberatie :emocracy, :ialogic Fustice and the !romise of
.ocial and 9conomic Rights2 in E$ Aliar, ? >illiams P ; ;lare ,eds$-, Soial and Eonomi Ri!%ts in T%eor)
and Pratie2 A Critial Assessment ,Routledge 2014-/ .iri Gloppen, 1Analy7ing the Role of #ourts in .ocial
4
%he noelties introduced through dialo!i onstitutionalism were, and still are, particularly
e(citing for those wor&ing with both onstitutional t%eor) and demorati t%eor), 8n the
one hand, and concerning onstitutional t%eor), these innoations are e(citing because they
allow us to renoate the unending, fatigued discussions on the Bustification of Budicial
reiew and the counter'maBoritarian difficulty$ In the face of the seemingly insoluble
tensions that e(ist between constitutionalism and democracy 3tensions that no new theory of
Budicial reiew has been able to sole' dialogic constitutionalism brings reasons for hope$ It
suggests a stimulating way for accommodating our commitments to both popular
soereignty and the protection of minority rights$
8n the other hand, and in what relates to demorati t%eor)* dialogic constitutionalism
seems attractie for at least two reasons$ Qirst, dialogic theories approach constitutionalism
with an eye placed on democracy6 their purpose is to reconcile both alues$ .econd, they do
so in a specific way, namely by choosing the perspectie of a deliberatie democracy, which
many of us consider a particularly fruitful approach to democracy$
%here are numerous ways of ex-lainin! these dialogic deelopments$ Eoweer, I want to
highlight one possible line of e(planation, which is the following$ =any legal actors and
actiists hae come to alue constitutional dialogue because they understood that, in the
situation of reasonable -luralism that characteri7es most of our societies,
2L
and in the face of
the profound reasonable disa!reements
78
we hae concerning how to lie together,
collectie dialogue appeared as a reasonable way to address our difficulties$ :ialogue, in
addition, seems particularly helpful in situations that are often characteri7ed by a profound
and also reasonable unertaint), where we are confronted with cases where we simply do
not &now what to do, how to act$ Not surprisingly, in these particular cases 3cases inoling
so'called strutural liti!ation ,enironmental rights/ prisoners2 rights/ forced displacement/
massie eictions/ massie iolations of rights-, constitutional dialogue has begun to play a
central role$
8f course, many would say that in these situations of grae disagreement or uncertainty, we
should simply define whether the affected people had a certain right or not, and then 3 if
they did 3 ensure its protection$ 5nfortunately, the fact is that, first ,in ?atin America, but
also beyond the region- the institutional system has actually not ensured protection to rights
commonly recogni7ed as fundamental rights ,i$e$, the Fudiciary refused to accept or decide
certain cases/ legislators seemed unconcerned by certain massie iolations of rights-$ And
second, in many cases we honestly and deeply disagree on all the basic 0uestions posed by
those proclaimed rights, including 0uestions about i- what the fundamental rights that we
hae are ,i$e$, do we hae group rightsS multicultural rightsS-/ ii- what the content of those
rights is ,i$e$, does freedom of e(pression include the right to critici7e public authorities with
actual malice and rec&less disregardS-/ or iii- what the best way to protect and guarantee
those rights is ,i$e$, scope of legal standing-$
In the face of these reasonable doubts and disagreements, dialogue appeared as a plausible
institutional alternatie$ :ialogue helped to find responses to those fundamental differences,
%ransformation2, in R$ Gargarella et al$ ,eds-, Courts and Soial Transformation in Ne$ (emoraies
,Ashgate 200+-/ !aul Eunt, Relaimin! Soial Ri!%ts ,:armouth 1MM+-$ .ee also ;rotos7yns&i ,n 2+-, 4$
2L
Fohn Rawls, Politial Liberalism ,#olumbia 5! 1MM1-$
29
Feremy >aldron, La$ and (isa!reement ,#5! 1MMM-$
5
in ways that at the same time too& basic 0uestions of democratic authority seriously, and
faoured the reach of Bustified agreements ,rather than a mere 1modus iendi2-$
)0

!#aluating Dialogue$ Constitutional Dialogue and Deli%eati#e Democacy
In the preious section, I proided some initial and proisional e(planations concerning why
dialogue became such an attractie practice, among legal actiists and scholars$ Eerein, I
will begin to critically ealuate the deelopment of this noel practice$ I want to critically
e(amine this practice precisely because I understand that it can only be defended ,and
strongly defended- if it deelops in certain particular ways$
In order to proceed with my criticisms, let me first clarify what my normatie standpoint
shall be in my analysis of dialogic constitutionalism$ I want to introduce this standpoint
een though 3 I beliee 3 it should also be possible to deelop or share most of my
criticisms by simply relying on reasons that are internal to the same dialogic practice$
?egal theory has already offered many possible definitions for dialogic constitutionalism$
Qor ;atharine Toung, for e(ample, 1dialogue describes a practice in which reason'giing
courts are able to adBudicate rights, but elected and accountable legislatures are gien the
final word on the shape of the obligations that flow from them2$
)1
=y only significant
problem with her attractie definition is that it seems to restrict dialogue to inter'branch
dialogue$ Another interesting definition is the one proided by "radley "a&&er$ Qor him,
1constitutional dialogue encompasses the idea that different goernmental branches and
people interact in ways that shape the dominant iews of constitutional interpretation oer
time2$
)2
%here are at least three features of this latter definition that I find attractie, namely
the fact that it goes beyond inter'branch dialogue/ its emphasis on dialogue as an ongoing
process/ and its focus on constitutional interpretation$ I am in principle comfortable with this
definition, although I would emphasi7e a few additional features, which in my opinion
should characteri7e a proper dialogue6 first, dialogue should be based on the e0ual status of
the participants/ second, it should be limited to issues of inter'subBectie morality/ and third
it should be facilitated by the institutional system$
))
I must emphasi7e that this definition
does not describe but rather tries to refine and build from what I found in actual practice$
According to this broader definition, dialogic constitutionalism would be characteri7ed by
different important notes, including those of e6ualit) ,which refers to the e0ual status of the
different participants-/ deliberation ,which refers to the process of e(change of reasons-/
)0
Fames "ohman, Publi (eliberation2 Pluralism* Com-lexit)* and (emora) ,=I% !ress 1MM+-/ F "ohman
P > Rehg ,eds-, (eliberati#e (emora) ,=I% !ress 1MMJ-/ Foshua #ohen, 1An 9pistemic #onception of
:emocracy2 ,1ML+- MJ Et%is 1/ :aid 9stlund, 1=a&ing %ruth .afe for :emocracy2, in : #opp, F Eampton
and F Roemer ,eds$- T%e Idea of (emora) ,#5! 1MM)-/ A Gutmann P : %hompson, 5%) (eliberati#e
(emora)9 ,!rinceton 5! 2004-/ Nino ,n J-/ Rawls ,n 2M-$ .ee also Furgen Eabermas 4et$een 'ats and
Norms, ,8riginal 'a.tizit:t und +eltun!- ,> Rehg tr, first published 1MM2, =I% !ress 1MM+-/ Feremy >aldron,
T%e (i!nit) of Le!islation ,#5! 1MMM- and Fon 9lster ,ed$-, (eliberati#e (emora) ,#5! 1MML-$
31
Toung ,n 11- 14J$
32
"radley "a&&er, 1"logs as #onstitutional :ialogue6 Rethin&ing the :ialogic !romise2 ,200L- +) Ne$ ;or.
3ni#ersit) Annual Sur#e) of Amerian La$ 21*, 21+$ .imilarly, see Gal :or, 1#onstitutional :ialogues in
Action6 #anadian and Israeli 9(periences in #omparatie !erspectie2 ,2000- 11 Indiana International <
Com-arati#e La$ Re#ie$ 1, 1J'1L$
))
.ee also A =auwese P = .nel, 1#onstitutional :ialogue6 An 8eriew2 ,201)- M 3tre%t La$ Re#ie$ 2,
12*'+, Ghttp6@@ssrn$com@abstractW2244L1LI accessed 10 :ecember 201)$
6
and inlusi#eness ,which stresses the idea of deliberation b) t%e -eo-le,
)4
under the
assumption that the entire process gains in impartiality if all the potentially affected
interened in that conersation-$
)*

?et me also clarify that the idea of e0uality that I am here ta&ing into account is directed at
saying that the institutional system organi7ed by the #onstitution should reflect the basic
e0uality that is implicit in the ery idea of establishing a #onstitution$ %he #onstitution is
and should mainly be understood 3I submit' as a compact between e0uals$ 8f course, this
basic egalitarian commitment is compatible with different institutional designs$ Eoweer, it
would be a problem if the institutional system at sta&e consecrated, promoted, guaranteed or
were compatible with profound leels of social e(clusion$ %he re0uirement of e0uality
emphasi7es the importance that this egalitarian commitment has and should hae for any
proper dialogic conception$
In this article, I will put particular emphasis on the latter point ,inclusieness-, and this will
not be because I assume that inclusieness is more important than the other two alues, but
rather because I thin& that most reflections on the topic hae been merely restricted to
1interbranch dialogue2 ,we shall come bac& to this point below-$
)+
In addition, the collectie
process would refer to an on!oin! on#ersation ,which would basically mean that courts
would not hae the authority to pronounce the 1last institutional word2-/ that is deeloped in
-ubli and is restrited to issues of -ubli moralit) ,which means that the collectie
dialogue would not be concerned with issues related to our priate moral life-/
)J
and that
does not de-end on t%e disretionar) $ill of one of its -artii-ants ,in other words, the
dialogic process should be promoted, rather than discouraged or simply authori7ed, by the
institutional system, which ta&es the encouragement of collectie dialogue as one of its
distinctie features-$
?et me clarify what I am mean by XdiscretionY through an e(ample$ In my country,
Argentina, the .upreme #ourt called for si( public audiences in 2012, but only two in 2011
and two in 201)$
)L
%here are no substantie reasons e(plaining these differences$ %his is, for
me, an e(ample of improper discretion$ 8n the one hand, neither our #onstitution nor our
institutional system establishes proper institutional procedures and channels for
constitutional dialogue6 ,this &ind of- dialogue may happen, or not, and in most cases we do
not get it, according to recent history$ 8n the other hand, public officers do not offer us any
substantie or public reasons e(plaining, for instance, when they will call for a public
audience, and when they will not6 dialogue happens or not, as a conse0uence of some
)4
.ee also, for e(ample, Fames Qish&in, 1:eliberatie :emocracy and #onstitutions2 ,2011- 2L Soial
P%iloso-%) and Poli)*1, 242$
35
%he 1inclusie2 character of the conersation obiously encompasses the three branches of power ,see, for
e(ample Toung, stating6 1In conersational reiew, all three branches assume a shared interpretie role oer
the right at issue2$ Toung ,n 11- 14J$ Eoweer, it must be noted, the idea of 1inclusieness2 is supposed to go
beyond the three branches6 it aims at including the people at large$
)+
8n interbranch dialogue see, for e(ample, the discussions generated around #hristopher 9dley2s wor&
,#hristopher 9dley, 1%he Goernance #risis, ?egal %heory, and !olitical Ideology2 1MM1 (u.e L, J, *+1-, in
(u.e L,J,= or around :an #oenen2s paper ,:an #oenen, 1A #onstitution of #ollaboration6 !rotecting
Qundamental <alues with .econd'?oo& Rules of Interbranch :ialogue2 ,2001- 42 5illiam and Mar) La$
Re#ie$ 1*J*-,
37
Fustifying this special protection to priate morality see Fohn .$ =ill, 0n Libert) ,first published 1L*M,
:oer !ublications 200)-/ Nino ,n J-$
38
http6@@www$ciB$go$ar@audiencias$html$
7
imprecise reasons$ I will hae these &inds of cases in mind when I made reference to
1improper discretion$2
Now, my definition of dialogic constitutionalism deries from a particular conception of
democracy, namely a deliberatie theory of democracy$ %his assumption is related to a
personal, intellectual coniction, but also from the fact that the dialogical practice seems to
constantly appeal to ,something along the lines of- a deliberatie democracy$ 8f course,
there is a long discussion concerning the meaning, scope, implications and irtues of
deliberatie democracy, but at this point I will not enter into the details of that comple(
discussion$ Eere, I will be basically assuming the alue of this specific ersion of
deliberatie democracy as gien$
)M
According to this iew, public decisions gain Bustification
when they are adopted after an ample process of olleti#e disussion with all t%ose
-otentiall) affeted$
40
%his iew of deliberatie democracy, it should be clear, emphasi7es
two main features as the essential features of a properly functioning democracy, namely
disussion and soial inlusion, %hese features shall play a crucial role in the critical
analysis of dialogic constitutionalism that I will deelop in the following pages$
Constitutional dialogue and &udicial e#ie'
Among many other interesting conse0uences, the new dialogical practice helps us reise
traditional approaches to Budicial reiew$ %he first thing to say, in this respect, is that
through the introduction of the dialogic approach, Budges tend to lose the prerogatie they
hold today to pronounce the 1last institutional word2 thereby 1thwartNingO the will Z of the
actual people of the here and now2$
41
%he dialogic model conceies of the institutional
system in ways that significantly differ from the traditional one, where Budicial reiew is
reduced to the binar) o-tions of either upholding or inalidating a statute$
42
>hat dialogic constitutionalism proposes, concerning Budicial reiew, significantly differs
from what many traditional and well'&nown approaches to Budicial reiew hae proposed$
?et me illustrate this point with two 0uite opposite cases, among the many that one could
choose from$ %he dialogic approach dierges, first, from Ale(ander "ic&el2s iew, which
inites Budges to step bac& and e(ercise their so'called passie irtues, thus allowing priate
agents to wor& out, by themseles, solutions for their legal problems$ #ontrary to this iew,
dialo!i onstitutionalism re0uires Budges to be more actie, particularly ta&ing into account
their uni0ue institutional position$ In effect, Budges hae direct and permanent access to the
complaints of all those who consider themseles to hae been improperly treated by the
maBoritarian decision'ma&ing process$ %his is why dialogic constitutionalism e(pects Budges
to enrich the collectie conersation with the claims of all those unheard or improperly
dismissed oices$
4)
As Ronald ;rotos7yns&i has put it, it is not difficult to recogni7e 1the
39
=y defence of the idea of deliberatie democracy is based in the idea of e0uality, but also in the 1epistemic2
irtues that I see in it$ In this respect see, for e(ample, #ohen/ 9stlund/ Nino ,n )1-$
40
Eabermas ,n )1-$
41
Ale(ander "ic&el T%e Least (an!erous 4ran% ,Tale 5! 1M+2-/ ?arry ;ramer 1!opular #onstitutionalism,
#irca 20042 ,2004- M2 California L R M*M$
42
%rying to reconcile theories faouring the Budiciary2s 1last word2 and dialogic theories, see, for instance,
#onrado E[bner =endes, Constitutional Courts and (eliberati#e (emora) ,85! 201)-$
43
Qor this reason, Budges are assumed to be in an e(ceptional position to gie due weight to the interests of
those unBustly e(cluded from the ordinary democratic political arena$ .ee .andra ?iebenberg, 19ngaging the
parado(es of the uniersal and particular in human rights adBudication2 ,2012- 12 Afrian &uman Ri!%ts La$
Journal 1$
8
superiority of dialogue to the passie irtues2$
44
Qor him, the dialogic model 1better seres
the alue of interbranch comity than Budicial silence followed by inalidation of legislatie
wor& product2$
4*
%he dialogic approach to Budicial reiew also differs from Guido #alabresi2s approach,
which is 0uite different from the one that "ic&el proposed$ #alabresi once maintained that
Budges should be authori7ed to repeal obsolete legislation$
4+
In his words, courts should be
gien 1the power by legislatures to order the sunset of a statute$ If the legislature disagreed
with a court\s determination, they would of course be empowered to oerrule the court and
reenact the statute$ >hether and when a law should sunset depends on the law itself$ .ome
become obsolete almost immediately, while others remain releant for a ery long time2$
4J
%his iew would re0uire Budges to be ery actie6 Budges would thus become profoundly and
constantly engaged with the legislatie process$ Eoweer, and for different reasons,
#alabresi2s iews seems also wrong, from a dialogic perspectie$ Although it is totally fine
to hae Budges deeply engaged in the public decision'ma&ing process, it seems erroneous to
foster their participation in the way #alabresi does$ In fact, #alabresi2s suggestion seems to
be still too much attached to the traditional system of Budicial reiew, where Budges either
uphold or inalidate a statute$ %he methods and procedures of a collectie conersation,
howeer, are and should be fundamentally different from the ones that presently
characteri7e our institutional system$ %he e(isting instruments appear to be more capable of
faouring a confrontation between une0ually situated powers, than of facilitating a
conersation between e0uals ,we will come bac& to this point-$
(easons fo concen$ Teminological) functional) and attitudinal po%lems
At the beginning of this article I made reference to some of the many reasons we hae for
commending the deelopment of dialogic constitutionalism$ In what follows, I want to focus
my attention on some of the difficulties that dialogic constitutionalism raises$ I hae in mind
fie main problems6 terminolo!ial, funtional, attitudinal, and strutural problems, and
also difficulties related to the unertaint) that such an approach would create$ Eerein, I will
mainly be focusing my attention on the structural problems, but before doing so, I will
briefly e(plore the other four issues$
i- Terminolo!ial problems derie from at least two different sources$ %he first has to do
with the natural ambiguities of ordinary language, and our difficulties to deal with them$
#learly, the idea of institutional dialogue, attractie as it is, is not easy to define6 >hat could
count as a situation of 1dialogue2 between two branches of power, and what as a situation of
1domination2 by one of the branchesS >hat could be deemed a proper 1response2 from the
Budicial branch to the legislature, and what should be ta&en instead as a gesture of
1retaliation2 or 1imposition2S
44
;rotos7yns&i ,n 2+- *J$
45
Ibid$, *J$
4+
Guido #alabresi, A Common La$ for t%e A!e of Statutes ,Earard 5! 1ML*-/ 1%he .upreme #ourt 1MM0
%erm$ Qoreword6 Antidiscrimination and #onstitutional Accountability ,>hat the "or&'"rennan :ebate
Ignores-2 ,1MM1- 10* &ar#, L, Re#, L0/ 1.hould the courts be allowed to repeal an obsolete lawS2, Interiew in
T%e Atlanti, 20 =arch 2012 Ghttp6@@www$theatlantic$com@national@archie@2012@0)@should'the'courts'be'
allowed'to'repeal'obsolete'law@2*44*4@I accessed 14 Fanuary 2014$ .ee also 3nited States #, T%en ,*+ Q$)
rd
4+4, 2d #ir$ 1MM*-$ ;rotos7yns&i ,n 2+- J$
47
#alabresi 2012 ,n 4M-$
9
8ne particularly interesting illustration of the problems I am referring to appears in the wor&
of "arry Qriedman$ In his influential wor& on Budicial reiew and dialogic constitutionalism,
Qriedman re'described the Budicial decision'ma&ing process in an original way$
4L
%hrough
this re'description, he tried to demonstrate that we hae wrongly been concerned with the
so'called counter'maBoritarian difficulty$ .uccinctly spea&ing, this would be so because 3
contrary to what most academics beliee 3 courts tend to ta&e their decisions through a
conersational process with the people and the other branches$ In his iew, 1all the three
branches2 interpret the #onstitution 1on a daily basis through an elaborate dialogue$2 %he
result of this, he claims, is that, oer time, the opinions of the court on salient issues tend to
come in line with popular preferences$
%he problem that I find with his iew is that Qriedman describes as 1dialogue2 or
1conersation2 what most of us would be inclined to describe in other, less amicable terms$
In my iew, Qriedman2s definition of 1dialogue2 does not comply with almost any of the
different re0uirements I associated with the term6 the 1conersation2 ta&es places between
actors with ery une0ual power/ there are numerous oices that remain inaudible or
unheard/ the court2s decisions gain a 1final2 character at least during long years or decades
,when the originating conflict had in one way or another dissoled-$ In addition, the
numerous 0ualifications that characteri7e Qriedman2s description of Budicial dialogue
suggest that his iew of dialogue results, in the best case, a ery restricted one$
4M
Neil .iegel,
for e(ample, has rightly point out that Qriedman2s description of dialogue is in fact a ery
restricted one6 it is actually limited to the most salient issues, concerning which the .upreme
#ourt and the people2s opinion would tend to conerge in the ery lon! run$
*0
As a
conse0uence, we would still hae good reasons to consider most Budicial decisions as an
imposition from aboe, rather than as a conersational response to our demands$ In other
words, Qriedman2s Budicial dialogue would actually ta&e place only in 0uite e(ceptional
circumstances$
As another illustration of the same problem we can ta&e the academic discussion around the
1oerride2 clause in #anada, which is so far the country where the most ibrant discussion
on dialogic constitutionalism has ta&en place$ >e &now, for instance, that the seminal article
written by !eter Eogg and Allison "ushell,
*1
which triggered an important debate on the
topic, was critici7ed ,among other reasons- precisely because of the ambiguous concept of
dialogue that it used$ According to #hristine "ateup, for e(ample, many of the critics 1hae
attac&ed the loose standard Eogg and "ushell employed to test the e(tent of dialogic
interactions, which focused on cases in which there had been 1some action by the competent
legislatie body$2 Qor her, it is difficult to describe situations of 1simple compliance2 by the
legislature, as eidence of 1a real interactie dialogue between e0uals, as these forms of
response are more a&in to legislatie ac0uiescence to, and compliance with, Budicial rulings$
Qurthermore, such responses also seem to proide eidence of precisely the &ind of
hierarchical relationship between the Budiciary and the legislature in #harter cases that
4L
Fenna "ednar, 1%he :ialogic %heory of Fudicial Reiew6 A New .ocial .cience Research Agenda2 ,2010- JL
T%e +eor!e 5as%in!ton La$ Re#ie$ 11JL/ "arry Qriedman, 1:ialogue and Fudicial Reiew2 ,1MM)- M1 Mi%,
L, Re#, *JJ/ 18nline Ale(ander "ic&el .ymposium2 ,200L- http6@@www$scotusblog$com@2012@0L@online'
ale(ander'bic&el'symposium'learning'about'the'supreme'court@ accessed 20 Fanuary 2014/ T%e 5ill of t%e
Peo-le ,Qarrar, .traus and Girou( 2010-$
4M
Roberto Gargarella, 1Acerca de "arry Qriedman y el control Budicial de constitucionalidad2 ,200*- )0
Re#ista "ur>dia de la 3ni#ersidad de Palermo **$
*0
Neil .iegel, 1A #oase %heorem for #onstitutional %heory,2 ,2010- Mi%, St, L, Re#, *L)$
51
Eogg P "ushell ,n 12-$
10
dialogue theory was designed to refute2$
*2
.imilarly, Andrew !etter stated6 1dialogue
theorists tend to e(aggerate the influence of legislatures in responding to Budicial decisions$
As others hae pointed out, not all legislatie responses are eidence of genuine dialogue,
and many are better characteri7ed as reflections of, rather than responses to, Budicial norms2$
*)
In any case, the point of these comments is not to gie an e(haustie oeriew of the
e(isting theoretical discussions around the concept of dialogue, or the oerride clause$ I Bust
wanted to show that een the most interesting and sophisticated approaches to dialogic
Bustice seem to be profoundly affected by terminological problems$
!arado(ically, another source of confusion has been the relatie success of the notion of
dialogic constitutionalism or Budicial dialogue$ %he fact that, contrary to what was e(pected,
the legal community receied dialogic initiaties with certain enthusiasm moed different
legal actors to oer'use and in the end triiali7e the idea of dialogue$ %ypically, Budges began
to re'describe what they were doing in dialogical terms, een though their 1renewed2
decisions did not substantially differ from their preious ones$ I will not dedicate time to this
source of linguistic misunderstandings, but I did want to mention it, because it is becoming
increasingly common and, as a conse0uence of it, the theoretical discussion on dialogue
tends to become less clear$
ii- ?et me now turn to the analysis of funtional problems$ Eere we find, in my opinion, a
minor problem compared to others$ %he problem deries, at least in part, from our
ine(perience regarding dialogical deices$ Not surprisingly 'gien the lac& of familiarity
that we all hae with these noelties' Budges and public officers in general hae been
incurring in undesired mista&es and confusions in the implementation of dialogic deices$
%hese functional difficulties hae been aggraated because of insufficient theoretical
reflection on dialogical mechanisms$ %o be more specific6 the theory of deliberatie
democracy 3which had a fabulous e(pansion in the last two decades' neer went ery far in
e(ploring its institutional implications, particularly in what concerns Budicial reiew$ Eow is
the practice of Budicial reiew supposed to loo& li&e in a deliberatie democracyS Eow
much room, if any, should a deliberatie democracy leae for that practiceS
Qor :ennis %homson, deliberatie democracy does not e(clude Budicial reiew, but tends to
resist the way in which it has been traditionally e(ercised$
*4
8ther authors, li&e #ass
.unstein and #arlos Nino, hae adanced some interesting speculations concerning how to
put deliberatie democracy and Budicial reiew together, but their proposals hae not gone
ery far$
**

52
"ateup ,n 12- 11$
53
!etter ,n 12- 11$
*4
:aniel %hompson, 1:emocratic %heory and Global .ociety2 ,1MMM- J T%e Journal of Politial P%iloso-%) 2,
112$
**
.ee, for e(ample the wor& of #ass .unstein ,i$e$, #ass .unstein, 1Interest Groups in American !ublic ?aw2
,1ML*- )L Stanford L R 1, 2M/ 1"eyond the Republican Reial2 ,1MLL- MJ ;ale L, J, 1*)M/ T%e Partial
Constitution ,Earard 5! 1MM)-/ (emora) and t%e Problem of 'ree S-ee% ,%he Qree !ress 1MM)-/ and
particularly his writings on Budicial minimalism ,i$e$, #ass .unstein, 0ne Case at a Time, Judiial Minimalism
on t%e Su-reme Court ,Earard 5! 1MMM-/ 1"ur&ean =inimalism2 ,200+- 10* Mi%, L, Re#, 2, )*)$ .ee also
#arlos Nino2s writing on the topic ,i$e$, Nino ,n J-$
11
In sum, for different reasons, including the fact that theorists of democracy did not manage
to offer a sufficiently seductie alternatie to Budicial reiew, Budges began to imagine and
put in practice different 1deliberatie2 solutions without much theoretical guidance$ %heir
proposals were tentatie, untried, proisional$ 8f course, these searches were motiated, in
most cases, by the echoes of academic discussions they were aware of 3academic
discussions related to the counter'maBoritarian difficulty and the alue of deliberatie
democracy$ "ut the point is that 3recogni7ing that the e(isting theory did not offer them the
guidance they needed' Budges were forced to deelop a process of trial and error 3 call it
Budicial e(perimentalism 3 trying to proide innoatie solutions to the problems they
faced$
*+

%he obious conse0uence of this lac& of theoretical guidance is that many of the Budicial
solutions that were then implemented appear 3from our present, more abstract, theoretical
perspectie' incomplete and at least partially wrong$ Qor instance, some "ra7ilian academics
assessed the first important public hearing implemented by the "ra7ilian .upreme #ourt
from the perspectie of a deliberatie democracy, and found many deficits in the way it was
deeloped$
*J
In the conclusion of their study they stated6
%his assessment reealed that the public hearing fulfilled the re0uirements of a
democratic deliberation only in part$ RegardingZinclusiityZnot all who applied
for participation in the process as amius uriae were incorporated$ In addition,
almost all nominated e(hibitors had an education or a profession in the medical or
biological science areas, which indicated the rules to define the participants
restrained the concept of organi7ed ciil society to a single segment, that is, the
scientific community, and more specifically, that group bound to the medical and
biological sciences$
*L

Now, it is certainly difficult to disagree with these and other possible criticisms to the way in
which the "ra7ilian #ourt organi7ed its first public hearing$ Eoweer, it seems also clear
that the "ra7ilian #ourt is in a process of learning and that many of the re0uired adBustments
can perfectly be incorporated in due time$
*M
In sum, my suggestion would be that the functional problems that courts hae e(perienced
so far are not particularly worrisome$ AdBustments are obiously necessary, but at this point
of time we hae accumulated sufficient &nowledge, theoretical reflection and comparatie
e(perience that may easily help courts to improe their performance in future engagements$
iii- %he third issue that I want to concisely e(amine 'before turning to what I call structural
problems' concerns attitudinal ,or motiational- problems$ %he types of problems that I am
thin&ing about hae different dimensions but I will only pay attention to two of them$ %he
first has to do with the motiations of public officers to engage in dialogic interactions
'typically with members of other branches of power/ and the second has to do with their
attitudes towards the public or members of the other branches during those interactions$
*+
= :orf P # .abel, 1A #onstitution of :emocratic 9(perimentalism2 ,1MML- ML Col, L, Re#,, 2, 2+J$
57
#orrRa =arona P =endes da Rocha ,n +-$
58
Ibid$ ,n +- 1M$
59
.ee also Roberto Gargarella 1%res concepciones sobre la libertad de e(presiCn,2 (iario Clar>n* ) .eptember
201), Ghttp6@@www$clarin$com@opinion@concepciones'libertad'e(presionH0HML+)0142+$htmlI accessed 22
Fanuary 2014$
12
8f course, Budges may engage in dialogic interactions because of ery different reasons$ In
many occasions Budges may actiate a dialogical process out of coniction6 they are
persuaded of the alue of democratic debate, and recogni7e that they can play a crucial role
in the promotion of collectie discussions$ Eoweer, it may also be true that in other
situations they resort to dialogic deices Bust trying to elude their duty to decide a particular
case/
+0
or attempting to mas& a ruling that would better be e(plained through other, less
attractie, reasons$ Qor e(ample, in 8ctober 201) the #olombian #onstitutional #ourt
challenged the constitutionality of a law that proided special penal guarantees for members
of the army forces$
+1
%he #ourt defied the law alleging the e(istence of serious failures in
the legislatie process of deliberation$ Qrom the perspectie of a deliberatie democracy, the
public reasons ino&ed by the #ourt were impeccable$ Eoweer, numerous members of the
legal community and of ciil society in general protested, claiming that the #ourt2s decision
was opportunistic, abusie, formalistic, e(cessie$ According to many, the #ourt had falsely
ino&ed procedural and formal reasons, mas&ed under dialogical concerns, in order to
inalidate a law that it in fact wanted to inalidate for other, non'public reasons$
+2

#oncerning this &ind of attitudinal problem, my suggestion would be simply the following6
gien that we will neer be able to ade0uately recogni7e what were the 1real2 Budicial
motiations behind a particular case, I thin& that we should do better by leaing our
speculations behind, and concentrating our attention on the public reasons offered by
Budicial decisions$
%here is, howeer, another attitudinal problem that I wanted to address, which will finally
force us to pay attention to more structural problems$ I am referring to the ways in which
Budges participate in these dialogic processes$ In a number of occasions, Budges hae shown
arrogance and other forms of disrespect towards the same people they had inited to discuss
about public issues$ %his situation creates serious difficulties for and in dialogue$ "y way of
illustration, I recently had the opportunity to obsere the public audiences organi7ed by
Argentina2s .upreme #ourt to discuss the e(ploitation of lithium in their territories with
representaties of indigenous people2s organi7ations$ %he #ourt conened these audiences in
order to gain direct access to the iewpoints of the affected indigenous group$ %he audiences
were e(tremely problematic for seeral reasons$ 5ndoubtedly the most notorious was the
attitude the .upreme #ourt Bustices too& toward the representaties of indigenous groups$
%he magistrates engaged in those discussions from a position of distance and superiority
that was shoc&ing to all who were then present$
+)
Again, I do not want to e(aggerate a
problem that I cannot ade0uately demonstrate$ Eoweer, I do want to suggest that we need
to pay attention to the internal dynamic of these dialogic practices$ In the end, there are
some structural elements that suggest that these &inds of difficulties are not e(ceptional$
+4
And this is why we shall soon begin the analysis of structural problems$
60
I learned about this possibility in a personal conersation with a .outh African .upreme #ourt Fustice$
61
.ee #orte #onstitucional, 8ctubre 201), Sentenia C'J40$
62
Rodrigo 5primny 1:esafuero de la #orteS2 (iario El Es-etador* 2J 8ctober 201)
Ghttp6@@www$deBusticia$org@inde($phpSmodoWinternaPtemaWsistemaHBudicialPpublicacionW1+1+I accessed 14
Fanuary 2014$
63
A chronicle of those audiences can be found in, for e(ample, the webpage of the 0bser#atorio de (ere%os
&umanos de Pueblos Ind>!enas* http6@@odhpi$org@2012@0)@corte'suprema'mineria'y'pueblos'indigenas@$
+4
Qor instance, most Budges are recruited from the upper sectors of society, particularly in ?atin America$ .ee
for e(ample Ana ;un7, Los Ma!istrados de la Corte Su-rema de la Nai?n @A8BC-A8DBE ,Instituto de
Inestigaciones FurDdicas y .ociales Ambrosio ?$ GioBa 1MLM-$ %his phenomenon is obiously not only limited
to ?atin America$ .ee for instance Fames Griffith, T%e Politis of t%e Judiiar) ,Qontana !ress 1MJJ-$
13
i- "efore turning to the study of the structural problems of dialogic constitutionalism, I
want to say a few words about one repeated and significant criti0ue to alternatie forms of
reiew, li&e dialogic reiew, a criti0ue that I do not share, but that became 0uite popular
among legal academics$ I am referring to obBections related to the unertaint) supposedly
created by dialogic'type of mechanisms$ %his criti0ue, which has most famously been
adanced by ?arry Ale(ander, goes li&e this6 all these new alternaties to traditional Budicial
reiew are finally unattractie because they introduce improper degrees of uncertainty and
instability into situations of conflict$ "y contrast, the traditional system aoids these
problems, and ensures that conflicts are settled through the interention of authoritatie
bodies$
+*
;eith >hittington, for e(ample, has presented Ale(ander2s settlement'obBection as
1the most prominent recent obBection to e(traBudicial constitutional interpretation2$
++
Now,
there are numerous things to say about this iew, but at this point I will simply mention why
I do not find it particularly attractie$ %he practice of dialogic constitutionalism has
deeloped for more than )0 years already, both in legally adanced countries and in fragile
legal communities$ It can be subBected to different criticisms 3and we Bust e(amined some of
them ' but criti0ues such as the ones mentioned by Ale(ander hae not ac0uired particular
releance in actual practice$ Rather than legal chaos and uncertainty, the practice of dialogic
constitutionalism has generated great e(pectations in those places where it too& place$
=oreoer, it has insufflated life to unappealing, old'style, eroded and bad'functioning legal
systems$ As >hittington has put it, Ale(ander and others2 obBection 1oerstates the alue of
constitutional stability, while simultaneously oerestimating the ability of the Budiciary to
impose constitutional settlements and underestimating the capacity of nonBudicial actors to
settle constitutional disputes effectielyZ=oreoer, the 0uestion of how constitutional
meaning can be resoled most effectiely is an empirical one2$
+J
.imilarly, =ar& %ushnet
claimed that critics of dialogic constitutionalism hae still to demonstrate that non'Budicial
constitutional reiew introduced 1more instability than they eliminate$ %he empirical case
against non'Budicial constitutional reiew remains to be established2$
+L
Stuctual po%lems$ The system of checks and %alances as an e"clusi#e machiney
In the preious pages we e(plored some difficulties faced by this new dialogic practice of
constitutionalism$ =y impression is that the 1real2 or more seere difficulties affecting
dialogic constitutionalism reside somewhere else, namely in some of its structural
limitations$ 8f course, there are different understandings of what 1structure2 means, and how
to approach 1structural2 problems$ A =ar(ist approach, for e(ample would recommend that
we first focus our attention on the economic or material basis of society/ and feminist
criti0ues would suggest that we pay priileged attention to the absence of certain oices or
the domination of certain iewpoints in our dialogic e(periences$
+M
%hese &inds of criticisms,
65
? Ale(ander P Q .chauer, 18n 9(traBudicial #onstitutional Interpretation2 ,1MMJ-* 110 &ar#, L, Re#, 1)*M/
1:efending Fudicial .upremacy6 A Reply2 ,2000-, Const, Comment, 1J, 4**/ ? Ale(ander P ? .olum
1!opularS #onstitutionalismS2 ,200*- 11L &ar#ard L, Re#, 1*M4$
66
;eith >hittington, 19(traBudicial #onstitutional Interpretation6 %hree 8bBections and Responses2 ,2002- L0
N,C,L,Re#, JJ), JL+$
67
Ibid$, JLL'M$ .ee also =ichael =c#ann, 1Reform ?itigation on %rial2 ,1MM2- 1J La$ < So, In6uir) J1*,
J))$
+L
=ar& %ushnet, 1Non'Fudicial Reiew2 ,200)- &ar#, J, on Le!isl, *)/ 1!opular #onstitutionalism as !olitical
?aw2 ,200+- C%i,-Fent L, Re#, L1, MM1/ 1%wo <ersions of Fudicial .upremacy2 ,1MMJ- 5m, < Mar) L, Re#, )M,
M4*$
+M
Anne !hillips, T%e Politis of Presene ,85! 1MML-/ =elissa >illiams, Voie* Trust and Memor) ,!rinceton
5! 2000-/ Iris Toung, 1Actiist #hallenges to :eliberatie :emocracy2 ,2001- 2M Politial T%eor) +J0/ Iris
Toung Inlusion and (emora) 85! 2002-$
14
I beliee, are absolutely releant for those interested in democratic dialogue, and must be
ta&en in serious consideration$ Eerein, howeer, I will only pay attention to a small portion
of the different structural problems that merit attention$ In what follows, in my references to
1structural2 problems I will only be thin&ing about our institutional structure/ and in my
references to the institutional structure I will mainly be referring to the e(isting system of
%e.s and balanes,
%he reasons for my choice should not be difficult to understand$ In part, it has simply to do
with my area of academic e(pertise$ Aboe all, howeer, my choice deries from the fact
that the system of chec&s and balances represents the core of the institutional organi7ation in
the Americas, and also one that is gaining growing influence in other parts of the world
,een in 9urope-$
J0
I hae two main criticisms related to the system of chec&s and balances in its relation to
dialogic constitutionalism$ %he first obBection says that the system of chec&s and balances
has been designed in order to preent a ciil warfare, rather than -romote a demorati
debate$ %his fact, I beliee, e(plains why the system is not well prepared and e0uipped to
ensure collectie deliberation oer time$ It can do so, but only as a result of the occasional,
informal and discretional will of certain public officers$ %he second criticism springs from
the fact that the system of chec&s and balances is based on a distrust of maBority ruling and a
strong preference for internal or inter'branch controls, rather than e(ternal or popular
controls$ %his fact, I beliee, e(plains why the system is not well prepared and e0uipped to
ensure a -ro-erl) inlusi#e deliberation$ It is worth noting that these two main criticisms are
directly connected to what I consider to be the two main re0uirements of a deliberatie
democracy, namely 1debate2 and 1inclusion$2 In addition, I want to remar& that my criticisms
will e(pose the e(istence of a worrisome tension within our constitutional structures,
namely a tension bet$een an old ma%iner) of -o$er and a rene$ed s)stem of ri!%ts$
%he basic point is this6 >e are trying to obtain from the system of chec&s and balances
something ,an inclusie democratic deliberation- that the system is not ,was not- well'
prepared to proide$ It was created for a different purpose, namely to contain social warfare
in a situation of social unrest and 1oppressie legislation2$
In my iew, it is this wea&ness of our institutional system that accounts for the enormous
attention that a ,rather minor- institutional reform li&e the not$it%standin! lause obtained
from the legal academy$ In fact, the adoption of the #harter in #anada did not represent a
significant progress towards the goal of democratic deliberation$
J1
If it gained so much
attention this was 3I submit' because it represented an interesting, une(pected effort aimed
at changing the institutional system in the direction of a more deliberatie scheme$ In other
words, I ta&e the academic success of the clause as a first suggestion of the alidity of one
of my claims, namely that the system of chec&s and balances has not been een slightly
helpful in the promotion of a collectie conersation$ =y assertion, howeer, is stronger
than that$ >hat I am assuming here is that een though the system of chec&s and balances
does not preent the deelopment of deliberatie practices, it neither fosters them, nor fits
well with them6 the system had a different goal, namely to preent social confrontation$
70
I e(plore the influence of the 5$.$ constitutional model of chec&s and balances in the drafting of ?atin
American constitutions in Roberto Gargarella, T%e Le!al 'oundations of Ine6ualit)= and also in
Constitutionalism in t%e Amerias* ADAC-ADGC ,#5! 2010-$ #oncerning 9urope, I am thin&ing about the
growing importance of Budicial reiew, through a concentrated and 1final2 Burisdiction by a 9uropean #ourt$
71
Fames Goldsworthy, Parliamentar) So#erei!nt) ,#5! 2010-, 20*$
15
In order to support my claims about the tensions between the system of chec&s and balances
and deliberatie democracy, in what follows I will pay attention to the -ubli reasons
offered by the creators of the system in its defence, and also to their underl)in! assum-tions
about demora)$ ?ater on, I will also suggest that the atual -ratie of the system
confirms my critical claims$

The system of checks and %alances and the pomise of an ‘amed tuce’
As anticipated, I will first maintain that the system of chec&s and balances is not prepared to
faour collectie debate$ It does not preent it and, occasionally, it can coe(ist with it, but it
was designed to sere a different, and rather opposite purpose$ Its main obBect was to
channel social warfare by proiding defensie tools to representaties of different sections
of society$ In other words, its purpose was to preent social clashes rather than promote any
&ind of collectie conersation$ 8f course, to state this does not mean to say that a proper
deliberatie system should not be concerned with the problem of chec&ing abuses or
balancing powers$ %he issue of controlling power is and should always be releant in any
institutional system$ Eaing stated this, howeer, I would also add, first, that there are
different ways of controlling the branches, and not all of them seem to be e0ually attractie,
from a democratic perspectie ,for instance, I will maintain that the prealent system is
unduly based on internal, rather than e(ternal controls-$ .econd, different controlling
systems may be more or less compatible with constitutional dialogue ,and 3I submit' our
system is unnecessarily and e(cessiely hostile to democratic deliberation, while 'for
instance' the one promoted by the Qederalists2 critics, including %homas Fefferson, seemed
to be more hospitable to collectie participation and debate-$ It seems clear to me that the
system of chec&s and balances that was created centuries ago was a reasonable response to
the &inds of collectie, public problems that were present at the time, gien the facts and
assumptions that were then ta&en into account ,i$e$, the power of factions/ the irrationality
that characteri7ed popular meetings-$ Eoweer, those old institutional responses seem to be
much less attractie today, in the face of our widely shared, basic democratic intuitions,
demands and commitments$ In the end, the idea is that our system offers bad institutional
support for the adancement of a deliberatie democracy$
J2

In order to support my claims about the 1purpose2 and 1logic2 of the system of chec&s and
balances, I will first resort to legal history and pay attention to the public reasons offered by
the ideologues of the system$ %hose legal arguments, I assume, will ma&e apparent that the
system of chec&s and balances was aimed at responding to a particular type of legal and
political conflict, rather than faour any &ind of collectie deliberation$ In this way, the
Qramers of the system were doing proper constitutional law6 they were trying to use the
coming #onstitution to confront the main -olitial and soial drama of their time, which
related 3in their iew' to the actions of factious maBorities in state legislatures$ ?egislatures
were creating two main problems, which they did not want to see reproduced at national
leel, namely i- the encroachment on the other branches ,i$e$, Rhode Island, 1JL*-/ and ii-
the passing of 1unBust2 legislation$
J)
%his is what e(plained their ,double- reaction that
J2
8n the need to connect discussions about interbranch dialogue and normatie democratic theory see, for
e(ample, =ar& %ushnet, 1.ubconstitutional #onstitutional ?aw6 .upplement, .ham, or .ubstituteS2 ,2001- 42
5illiam and Mar) La$ Re#ie$ 1LJ1$
73
In his crucial paper Vies of t%e Politial S)stem of t%e 3nited States* =adison made reference to these
problems, alluding to the 1multiplicity,2 1mutability2 and 1inBustice2 of the laws, which he attributed mainly to
the way in which 1representatie bodies2 were then organi7ed$ .ee Fames =adison, Vies of t%e Politial
16
consisted in i- proiding defensie tools to members of the different branches, and ii-
limiting the pressures of passionate maBorities upon their representaties$ At the same time
,and this is my claim- these solutions created two main problems6 the first solution ended up
undermining the deliberatie character of the system/ and the second solution ended up
undermining its inclusie character$

After completing this reiew of legal history, I will also claim that my argument can also be
supported by e(amining the actual practice of the system$ In other words, no matter what the
Qramers of the system thought or desired concerning the system of chec&s and balances, I
will claim that we hae good reasons to assert that the system, in actual practice, does not
faour or directly hinder collectie deliberation$ ?et me begin this e(ploration by focusing
on the first, historical analysis$
iE Containin! soial $arfare @or underminin! deliberationE, Not surprisingly, I will begin
this historical inestigation with a reference to the 'ederalist Pa-ers ,this is to say the te(ts
where some of the XQounding QathersY Bustified the 5$.$ #onstitution- and particularly to
the most cited, significant and influential te(t eer written on the topic, this is to say
'ederalist Pa-er No, HA$ %he analysis of this line of argument seems particularly important
gien the decisie influence that it had for the creation and deelopment of the system of
chec&s and balances, first in the 5nited .tates, and then in other regions of the world,
beginning from ?atin America$
In 'ederalist -a-er No, HA, Fames =adison e(plained and Bustified the creation of this
system of mutual balances$ %he core of the paper appears in this crucial paragraph, where
=adison stated6
the great security against a gradual concentration of the seeral powers in the
same department, consists in giing to those who administer each department
the necessary constitutional means and personal moties to resist
encroachments of the others$ %he proision for defense must in this, as in all
other cases, be made commensurate to the danger of attac&$ Ambition must be
made to counteract ambition$ %he interest of the man must be connected with
the constitutional rights of the place$ It may be a reflection on human nature,
that such deices should be necessary to control the abuses of goernment$ "ut
what is goernment itself, but the greatest of all reflections on human natureS If
men were angels, no goernment would be necessary$ If angels were to goern
men, neither e(ternal nor internal controls on goernment would be necessary$
In framing a goernment which is to be administered by men oer men, the
great difficulty lies in this6 you must first enable the goernment to control the
goerned/ and in the ne(t place oblige it to control itself$
%he passage is e(traordinarily rich, and a proper understanding of it would ta&e an entire
seminar, so I will limit myself to highlight a few notes about it$ Qirst of all, I will claim that,
concerning the basic organi7ation of the system of chec&s and balances, =adison2s iews
were apparent$ =adison did not enision a dialogic relationship between the different
branches, but rather a scenario of 1perpetual war2$ Ee assumed that 1those who
administerNedO each department2 would systematically attempt to iolate the limits of their
own powers and inade the areas controlled by the other branches$ In other words, the ideas
S)stem of t%e 3nited States* 1JLJ, Ihttp6@@press'pubs$uchicago$edu@founders@documents@1ch*s1+$htmlI
accessed 10 Fanuary 2014$
17
of cooperation or mutual collaboration were basically absent from his understanding of the
dynamic between the branches$ %his e(plains why members of each branch were mainly
prepared to 1resist encroachments of the others$2
%he main strategy in order to aoid these mutual encroachments was 3and this is probably
the main line of 'ederalist -a-er No, HA' to gie 1to those who administer each department
the necessary constitutional means and personal moties2 re0uired for that purpose$ Qor
=adison, the representaties2 1personal moties2 were ta&en as gien6 he was mainly
thin&ing about self'interest ,and passions-$ As he put it6 1ambition must be made to
counteract ambition2$ In this respect, =adison was basically following :aid Eume2s
understanding of human motiations$ In passing, it is interesting to note that this iew of
human motiations implied the dismissal of other alternatie approaches to the topic, and
particularly a dismissal of those ,then enormously releant- re-ublian iews that assumed
that i#i #irtue played or could play a central role in politics$ =adison ridiculed those
iews, claiming that 1NiOf men were angels, no goernment would be necessary$2
J4
=adison assumed that the main motiation of 1those who administer each department2 was
,and was going to be- their uninhibited ambition$ .o what can be done in the face of this
disgraceful factS Eis response was to gie members of each department 1the necessary
constitutional meansZto resist encroachments of the others$2 #learly, these 1necessary
means2 were not dialogical instruments$ %hey were mechanisms that, li&e arms or guns,
were supposed to facilitate the achieement of an 1armed truce2 between the branches$ In
other words, it was then assumed that, with these arms at their disposals, members of each
department would be able to 1resist the encroachment of the others$2 In other terms 3and this
was the hope, and at the same time the promise of the system' fearing retaliation, members
of the different branches would not be tempted to interfere with the affairs of the other
branches$ %his promise was also a sad recognition of the limitations of the system, which in
no way was perceied as faourable to collectie dialogue$ Recall, for e(ample, the
conclusion reached by Nathaniel #hipman 'by that time .enator from <ermont, and then
#hief Fustice of the <ermont .upreme #ourt$ Qor him, the proposed system of chec&s and
balances created the conte(t for a 1perpetual war of each NinterestO against the other, or at
best, an armed truce, attended with constant negotiations, and shifting combinations, as if to
preent mutual destruction6 each party in its turn uniting with its enemy against a more
powerful enemy2$
J*

In sum, the Qramers promoted an institutional system that was aimed to 1economi7e in
irtue2 ,that, seemingly, their rials did not want to 1economi7e2-, and conse0uently tried to
use the representaties2 self'interest ,1ambition2- in the benefit of all$
J+
%heir idea was that
the mechanisms of chec&s and balances could ensure an 1armed truce2 between the then
e(isting social, economic and political interests$ %he eto powers in the hands of the
9(ecutie/ the impeachment capacities of #ongress/ the possibility of Budicial inalidation
74
=orton >hite, P%iloso-%)* T%e 'ederalist and t%e Constitution ,85! 1MLJ-$ 8n irtue, see ]uentin
.&inner, 1=achiaelli on the =aintenance of ?iberty2 ,1ML)- 1L Politis )/ 1%he idea of Negatie ?iberty6
!hilosophical and Eistorical !erspecties2, in R Rorty, F$"$ .chneewind P ] .&inner ,comps$-, P%iloso-%) in
&istor) ,#5! 1ML4-/ ]uentin .&inner, 1%he Republican Ideal of !olitical ?iberty2, in G "oc&, ] .&inner, =
<iroli ,eds$-, Ma%ia#elli and Re-ublianism ,#5! 1ML4-/ ]uentin .&inner, Libert) 4efore Liberalism, ,#5!
1MML-$
J*
Nathaniel #hipman, Prini-les of +o#ernment, A Treatise on 'ree Institutions ,"urlington 1L))-, 1J1$ .ee
also =aurice <ile, Constitutionalism and t%e Se-aration of Po$ers ,#larendon !ress 1M+J-, 1))$
76
"ruce Ac&erman, 5e t%e Peo-le2 'oundations ,Earard 5! 1MM1- 1ML$
18
of laws/ or the legislators2 powers of insistence were some of the most important 1guns2 or
1defensie tools2 proided to those in power$
iiE T%$artin! t%e ideal of J!o#ernment b) t%e -eo-le/ @or underminin! inlusionE, In the
precedent section I tried to demonstrate that the system of chec&s and balances responded to
the need to contain social warfare, rather than promote collectie deliberation$ Now, let me
say something concerning its deficit in terms of inclusion and popular participation, by
ma&ing three points related to the Qramers2 ideas about fations/ the re-resentati#e s)stem/
and the establishment of a system of internal rat%er t%an external ontrols$
%he concept of fations* which is un0uestionably the most important political concept in
'ederalist Pa-ers* represents a good start in order to specify my iews on the subBect$
JJ
It
seems clear that the entire new structure of goernment was directed to contain the ris&s that
factions posed to any goernment$ >e can put this een more strongly6 the entire
#onstitution was primarily Bustified as a way to contain the eils of factions$ Now, a first
interesting thing to note is that, in 'ederalist Pa-er No, AC =adison defined factions with
great care as a 1number of citi7ens, whether amounting to a maBority or a minority of the
whole, who are united and actuated by some common impulse of passion, or of interest,
adersed to the rights of other citi7ens, or to the permanent and aggregate interests of the
community$2 Eoweer, a few lines below he made it clear that 1if a faction consists of less
than a maBority, relief is supplied by the republican principle, which enables the maBority to
defeat its sinister iews by regular ote$2 As a conse0uence, the only factions that reall)
mattered were maBority factions, which allows us to say that the entire #onstitution was, in
the end, dedicated to restrain the actions of maBority groups, gien their oppressie
tendencies$ %he ris& of minority oppression was not ta&en seriously at the time ,een in the
face of slaery-$
JL
In the same paper, =adison made reference to the 1iolence of faction2 and the 1instability,
inBustice, and confusion2 that factions 1introduced into the public councils,2 which
represented 1the mortal diseases under which popular goernments hae eerywhere
perished$2 >hat =adison had in mind was the so'called 1paper money crisis2 that affected
the country during this post'independence ,and pre'constitutional- period$ %his 1crisis2 had
become more threatening and dangerous as a conse0uence of its legal manifestations than as
a result of the armed confrontations that it proo&ed$ In the end, the armed confrontations
,symboli7ed by the famous 1.hays rebellion2- were generally perceied as illegal actions,
and conse0uently repressed by the troops of the #onfederation$
JM
%he real problem, howeer,
emerged when the same demands that a few had adanced through the use of armed
iolence ,and that were then combated, as illegal actions-, began to gain terrain through the
use of the law$ %his is to say, the main threat to a stable and well'ordered goernment
JJ
=adison defined the concept of factions in 'ederalist -a-er 10$ 1"y a faction2 3he claimed' 1 I understand a
number of citi7ens, whether amounting to a maBority or a minority of the whole, who are united and actuated
by some common impulse of passion, or of interest, adersed to the rights of other citi7ens, or to the
permanent and aggregate interests of the community$2 .ee A Eamilton, F =adison, F Fay, T%e 'ederalist
Pa-ers ,first published 1JLJ, "antam "oo&s 1ML2-$
78
%his point also in Robert :ahl, A Prefae to (emorati T%eor) ,%he 5niersity of #hicago !ress 1M*+-$
79
Robert "rown, Re#olutionar) Politis in Massa%ussets ,Earard 5!1MJ0-/ 1.hays\s Rebellion and its
Aftermath6 A <iew from .pringfield, =assachusetts, 1JLJ2 ,1ML)- 40 5illiam and Mar) Kuarterl)$ 4/ Robert Qeer,
S%a)s/s Rebellion ,Garland 1MLL-/ :aid .7atmary, 1.hays\ Rebellion in .pringfield,2 in =artin ;aufman ,ed$-,
S%a)sL Rebellion2 Seleted Essa)s ,>estfield .tate #ollege 1MLJ-/ Gordon >ood, T%e Creation of t%e Amerian
Re-ubli ,>$>$Norton P #ompany 1M+M-$
19
seemed to come from 1outside2$ %he suggested federalist solution to the problem was then
twofold6 restrictions to e(ternal pressures, and a system of internal controls$
In other words, a socially e(plosie situation, which included armed rebellions, unchec&ed
legislatures and the 1paper money crisis2, e(plains why most of the Qramers came to faor a
system of endogenous, rather than e(ogenous or popular controls$ It was that e(plosie
social situation that moed =adison, in 'ederalist No, AC, to resist direct popular
participation in politics, and faour, instead, a representatie system where representaties
of the people would 1refine and enlarge the public iews by passing them through the
medium of a chosen body of citi7ens2$
L0
.o, for =adison, as for most of the 1Qounding
Qathers2, the representatie system was not seen as a 1second best2 or a 1necessary eil2 ,as
many of their anti'federalist opponents enisioned it-$ Representation was, for them, a first
and desired option$ And this was so because they assumed that the people themseles were
still not well'prepared to engage in politics directly$ Qor =adison, the representaties2
decisions tended to 1better sere Bustice and the public good than would the iews of the
people themseles if conened for that purpose2$ Fames Qish&in has characteri7ed this
=adisonian approach ,which he directly relates to the one deelop by Fohn .tuart =ill a
century later in his Considerations on Re-resentati#e +o#ernment-, as one of elite
deliberation$
L1
As we also try to do here, Qish&in distinguishes that elitist system of
democracy from deliberatie democracy$
L2

%he Qramers2 elitist iew deried from some of the assumptions e(plored in preceding
sections, and particularly from the Qramers2 fear of maBoritarian democracy$ It was also as a
result of those assumptions that they limited popular political participation mainly to
periodic suffrage$
It is true that periodic elections represent an e(ternal control that plays a crucial role in our
system of goernment$ Eoweer, it is also true that periodic elections constitute only one
among the many numerous mechanisms of popular character that could hae been then
adopted$ %he fact is that the Qramers reBected or chose not to consider numerous other
mechanisms of e(ternal control, which were ery common at their time$ %hese mechanisms
included mandatory instructions/ the right to recall/ mandatory rotation/ annual elections/
fre0uent town meetings/ etc$ :eices of the &ind had been adanced by "ritish radicals in
Great "ritain during the mid'1J00s 3 from Richard !rice, Foseph !riestly and the group of
1Radical :issenters,2 to Fames "urgh and Fohn #artwright 3 and also in the 5nited .tates, by
the political opposition ,the so'called anti'federalists-, in the years that preceded the
enactment of the national #onstitutional$
L)

80
It has also been noted how =adison played with the ambiguous notion of 1chosen26 1chosen2 could refer
both to those who had been selected by the people, and@or something more in the line of the 1selected few2$ .ee
"ernard =anin, T%e Prini-les of Re-resentati#e +o#ernment ,#5! 1MMJ-$
81
Qish&in ,n )J- 24), 24+$
82
"y which he means 1a theory that attempts to combine deliberation by the people themseles with an e0ual
consideration of the iews that result2, ibid$, 24J$
83
#arl #one, T%e En!lis% Jaobins, Reformers in Late AD
t%
Centur) En!land ,.cribner 1M+L-/ #ecelia
;enyon, T%e Antifederalists ,Northeastern 5niersity !ress, 1ML*-/ %homas !aine, in "ernard ;uc&lic& ,ed$-,
T%omas Paine, Politial 5itin!s ,#5! 1MLM-/ Eerbert .toring, 5%at t%e anti-'ederalists $ere for ,%he
5niersity of #hicago !ress 1ML1-/ Gordon >ood, T%e Radialism of t%e Amerian Re#olution ,Alfred ;nopf
1MM2-/ T%e Amerian Re#olution, A &istor) ,%he =odern ?ibrary 2002-$ .ee also :aid ?ut7, T%e 0ri!ins of
Amerian Constitutionalism ,?oussiana 5niersity !ress 1MLL-104'*$
20
Now, the fact that none of these mechanisms found a place in the 5$.$ #onstitution implies
at least two things$ 8n the one hand 3 and we hae discussed this already 3 the system of
endogenous controls became the central feature of the new structure of goernment$ 8n the
other hand, popular suffrage suddenly became the only releant institutional bridge between
the representaties and the represented$ In other words, periodic suffrage assumed an
e(traordinary responsibility6 elections became in charge of periodically 1reealing2 the will
of the people, without much additional institutional help$
#onse0uently, the irtual absence of alternatie deices ma&e it e(tremely difficult for the
people to control their representaties and ma&e their oice audible, thus undermining the
republican character of goernment$
L4
=ost early critics of the representatie system
recogni7ed this ris&$
L*

%he point is, in the end, that contrary to some widespread assumptions ,we shall come bac&
to this below-, the system of chec&s and balances presents serious flaws in term of the
incenties it proides to public officers and the types of controls that it establishes$ %he ris&s
that I mention had been clearly anticipated by the republican and radical critics of the
system, who for such reason proposed an alternatie institutional system ,based on the
promotion of ciic irtue plus an emphasis on popular controls-$
L+
In particular, from the
perspectie of deliberatie democracy, this understanding of politics becomes particularly
unattractie$ And this is so because the appeal of the new dialo!i s)stem of
onstitutionalism entirely depends 3 or so I shall argue 3 on its capacity to oercome the
democratic deficit that has been affecting our representatie system in all these years$ 8nly a
wide and inclusie dialogue may become a meaningful dialogue$
iii- (emora), Eaing reached this point, I thin& that it is ery important to pay attention to
the peculiar iew of democracy presupposed in the system of chec&s and balances$ %he
conception of democracy that preailed among the Qramers has already been the obBect of
profound academic analysis$
LJ
>e hae already some indications about what that conception
of democracy loo&ed li&e6 we &now about the Qramers2 distrust of the legislatures or their
fear of unchec&ed maBorities$ Qor the Qederalists it was clear that 1in all ery numerous
assemblies, of whateer character composed, passion neer fails to wrest the scepter of
reason2 ,'ederalist -a-er **-$
%his fearful approach to politics faoured the deelopment of a ne!ati#e understanding of
democracy 3let us call it -luralist M where the main purpose of democracy is not to foster
deliberation or promote collectie agreements, but rather a#oid mutual o--ressions ,:ahl
1M*+-$ %his goal, together with the assumption that factions had a natural tendency to
oppress each other, e(plains the Qramers2 oerriding concern with the creation of a system
of controls and mutual balances$ %he proposal to balance 1ambition with ambition2 so as to
1control the abuses of goernment2 e(presses well the Qederalists2 assumptions, their fears
and their hope$ Ale(ander Eamilton made this point ery clear$ Ee stated6 1Gie all the
power to the many, they will oppress the few$ Gie all the power to the few, they will
L4
As !hilipp !ettit stated6 1No matter how powerful a system of popular influence, it will not support
republican democracy unless it seres to impose a popular direction on goernment$2 !hilip !ettit, 0n t%e
Peo-le/s Terms, A Re-ublian T%eor) and Model of (emora) ,#5! 2012-, )0+$
L*
"ut see, for instance, =ar& %ushnet, 1>ea&'Qorm Fudicial Reiew6 Its Implications for ?egislatures2 ,2004-
2) Su-reme Court La$ Re#ie$ 21)$
86
.ee Gargarella ,n J4-$ .ee also %homas Fefferson2s letter to Fohn %aylor, 1L1+, in %homas Fefferson,
Politial 5ritin!s ,#5! 1MMM-, 20M$
87
:ahl ,n L4-$
21
oppress the many$ "oth therefore ought to hae power, that each may defend itself agst$ the
other2$
LL
Fames =adison made an identical point$ Qor him, 1NtOhe landholders ought to hae a
share in the goernment, to support theZinaluable interests ,of property- and to balance
and chec& the other ,group-2$
LM
Now, the obBect of this iew of democracy 3 aoiding mutual oppression 3 was certainly
worth of praise, particularly at a time when social diisions implied dire confrontations and
een armed clashes between opposing interests$ In that conte(t, a negatie conception of
democracy may appear as a reasonable choice6 few things seem more important than
preenting e(treme social conflict, aoiding the repression of unpopular minorities, etc$
Eoweer, it seems also clear that this conception of democracy was based on controersial
normatie grounds 3 grounds that substantially differ from those that characteri7e the
deliberatie approach, and also from our presently shared understandings of democracy$
M0
Qor the moment, it should be enough to say that the institutional system tried to ensure that
1the many2 and 1the few2 enBoyed an e0uialent institutional power, which seems an odd
solution in democratic terms$ %his sole proposal suggests an idea of democracy that has ery
little connection with our present approaches to the democratic ideal$ 8f course, it seems
perfectly reasonable to ensure protection to unpopular minorities, but not 3I would add 3 at
the cost of so seerely undermining the basic maBoritarian component of democracy$
M1

i- Latin Ameria, Gien that I ta&e most of my dialogic e(amples from ?atin America, let
me add a few lines e(ploring the e(isting continuities between Anglo'American legal
history and what happened in ?atin America during its Qounding years$
M2
I will limit myself
to ma&e two 0uic& points6 first, I will claim that there is a clear continuation between the
5$.$ constitutional history and ?atin America2s constitutional history/ and second, I will
show that ?atin Americans tended to carry the 5$.$ institutional model to its e(treme,
particularly as a result of the influence of conseratie@religious groups$ %hese two
deelopments, I should add, ma&e inter'branch and popular dialogue still more difficult to
achiee$
#oncerning the continuities between the 5$.$ and ?atin America, I would add that, gien the
importance that liberalism ac0uired during the Qraming !eriod in ?atin America, most
countries in the region modelled their #onstitutions under the influence of the 5$.$
#onstitution$ %hey organi7ed a system of chec&s and balances that followed the 5$.$ model
and, accordingly, established a presidentialist system$ In addition, they also included a "ill
of Rights in their #onstitutions, according to the 5$.$ e(ample$ Eoweer, I should add that
this particular aspect was substantiely modified during the 20
th
#entury ,and after the 1M1J
=e(ican Reolution-, when most countries began to include social, economic and cultural
rights within their #onstitutions$
%he second point that I want to ma&e is that, gien the significant and growing influence of
conseratie and religious forces in ?atin America ,particularly during the first half of the
1M
th
#entury-, most #onstitutions began to at least partially depart from the 5$.$ e(ample$ In
particular, the changes that were then incorporated into the new #onstitutions implied two
88
=a( Qarrand ,ed$- T%e Reords of t%e 'ederal Con#ention of ANDN ,Tale 5! 1M)J- ol$ 1, 2LL$
89
Qarrand ,n MJ- ol$ 1, 4)1$
90
.ee Nino 1MM+ ,n J- L1$
91
!resently, it is difficult to thin& about democracy without ma&ing reference, first, to 1the rule of the many2$
%homas #hristiano, T%e Rule of t%e Man)2 'undamental Issues in (emorati T%eor) ,>estiew !ress 1MM+-$
92
I hae e(plored this comparison in more detail in Gargarella ,n J4-$
22
things$ Qirst, the separation of #hurch and .tate that some ?atin countries recogni7ed in
their "ill of Rights resulted in one way or another undermined$ In cases li&e the one of
Argentina, the #onstitution included, at the same time, both a commitment to religious
tolerance and a proision ensuring a special status to the #atholic religion$ %he other change
that was introduced in most #onstitutions concerned the organi7ation of the system of
chec&s and balances$ A maBority of ?atin American countries modified the 5$.$
presidentialist system and carried it to its e(treme$ #onse0uently, they created hyper'
presidentialist systems of goernment, within the conte(t of already highly centrali7ed
countries$ %his initiatie, I should add, put the entire system of e0uilibriums ,which re0uires
the different branches to be relatiely e0ual in power- at ris&$
M)
=oreoer, and more
significantly for our purposes, hyper'presidentialist systems tend to be particularly harmful
as far as public discussions are concerned$ As #arlos Nino has suggested, powerful
presidents hae ery little incenties for engaging in dialogue with the other branches of
power ,why do it, when they can simply impose their decisions upon the restS-/ and tend to
use the strong powers at their disposal so as to foster public acclamation, rather than public
debate about their proposals$
M4
- Summin! u-, >hat are the inferences we can derie from all these initial reflections
concerning the system of chec&s and balancesS And what is the connection between them
and our topic of dialogic constitutionalismS %he partial conclusion is the following6 %he
system of chec&s and balances does not represent an appropriate institutional basis for the
promotion of deliberatie democracy$
M*
It was a remedial, institutional response to a
situation of e(treme social, political and economic conflict$ In that conflictie conte(t, its
immediate and fundamental purpose was to contain and channel the e(isting social crisis,
which had begun to manifest itself through the institutional system ,i$e$, through paper
money legislation enacted by seemingly unchec&ed legislatures-$ %he connection of this
partial conclusion with our present topic seems then apparent6 ta&ing into account the
present characteristics of our institutional system, dialogic constitutionalism faces and ,most
probably- will continue to face grae problems for becoming a stable and non'discretionary
institutional solution$
M+
And this is so because the basic structure of our institutional system
is not well prepared to faour inter'branch dialogue, and een less to maintain institutional
dialogue oer time$ It can accept it occasionally, but it is clearly not hospitable to it$
%he problem we are dealing with ,the fact that our institutional system is not hospitable to
collectie dialogue- seems to be present een in the conte(t of #anada, where the #harter
introduced formal mechanisms faouring at least some form of constitutional dialogue$
Reiewing the history of dialogic mechanisms in #anada, ;ent Roach ,who is one of the
main academic authorities on the oerride clause- recogni7es these worries$ Ee states6
1concerns hae been raised that on some issues the #ourt has had or shaped the last word$
Qears hae been e(pressed that whateer its potential, dialogic Budicial reiew can
degenerate into Budicial monologue and supremacy2$
MJ
#learly, I do not want to, and I am not
93
.ee Fuan "$ Alberdi, 4ases ) -untos de -artida -ara la or!anizai?n -ol>tia de la Re-Oblia Ar!entina
,first edition 1L*2 !lus 5ltra 1ML1-, chapter 2*-$
94
Nino 1MM+ ,n J-$
95
Feffrey %ulis, 1:eliberation "etween Institutions,2 in ! ?aslett P F Qish&in ,eds$-, (ebatin! (eliberati#e
(emora) ,"lac&well !ublishing 200)-, 200$
M+
9(ploring the connections that e(ist between Budicial interention and institutional settings ,with a particular
focus on the cases of =e(ico and "ra7il-, see F Rios'Qigueroa P = %aylor, 1Institutional :eterminants of the
Fudicialisation of !olicy in "ra7il and =e(ico2 ,2002- J, Lat, Amer, Stud, )L, J)M$
MJ
Roach ,n 12- J*'+/ Famie #ameron, 1:ialogue and Eierarchy in #harter Interpretation6 A #omment on R$ $
=ills2 ,2001- )L Alta, L, Re#, 10*1$
23
able to, ealuate the actual wor&ing of the #anadian model$ At this point, I Bust want to say
that one can perfectly understand e(isting concerns about the real scope and implications of
the #harter reform and Budicial reiew$
%he difficulties I mention in relation to the #anadian conte(t are obiously more significant
in those countries that hae decided to &eep their old structure of chec&s and balances
untouched$ In ?atin America, serious problems emerge as a conse0uence of the priileged
position that Budges still enBoy/ or as a result of the hyper'centrali7ed and hyper'
presidentialist character of the dominant institutional organi7ation$ Qor instance, a recent
study by RodrDgue7'Garaito compares the most important dialogic decisions of the noted
#olombian #onstitutional #ourt, in cases of structural litigation$
ML
%hese decisions include
the famous Sentenia %'02*, about the rights of displaced people/ Sentenia T'J+0, about
the right to health/
MM
and Sentenia %'1*), about the rights of prisoners$
100
In one of these
cases, namely Sentenia T'02*, the #ourt designed a spectacular monitoring process$ In
RodrDgue7'Garaito2s words6 18er the course of seen years, it has engendered twenty'one
follow'up public hearings inoling a wide array of goernmental and nongoernmental
actors, as well as nearly 100 follow'up decisions whereby the ### has fine'tuned its orders
in light of progress reports2$
101
%he situation, howeer, has been dramatically different in the
other two cases, and particularly in Sentenia T'1*), which did not include any court'
sponsored monitoring'mechanisms$ In the face of these facts, I Bust want to insist on one
point, related to the informal, discretionary character of our dialogical practices$ In the end,
and to repeat, the point is that the traditional system of chec&s and balances ,eerywhere,
and particularly in countries with highly concentrated systems of goernments- is not
hospitable to dialogic mechanisms6 it may accept them occasionally, but only when public
authorities want to appeal to them, and insofar as they are willing to accept their
implications$
102
T'o o%&ections$ The histoy and actual pactice of contempoay democacies
In the preious pages, I maintained that the system of chec&s and balances has not been
conceied for the purpose of promoting public deliberation 3rather the contrary 3 and is not
hospitable to it, een though it may occasionally be compatible with it$ %his is why those
interested in dialogic constitutionalism should also be interested in changing the basic
structure of the institutional system, so as to ma&e it more supportie to collectie
conersations$
I understand, howeer, that my iews about the structural problems affecting the system of
chec&s and balances are open to numerous criticisms$ .o, in this part of my article I will try
to at least ery briefly address two of these possible obBections$ %he first one would mainly
challenge my first criticism to the system of chec&s and balance, which was directed against
its deliberati#e-defiit$ %he second one would mainly challenge my second criticism to the
98
RodrDgue7'Garaito ,n )-$
99
#$#$, Fuly )1th, 200L, Sentenia T'J+0@0L ,slip op$ at 200'0)-, a#ailable at
%tt-2PP www$corteconstitucional$go$co@relatoria@200L@%'J+0'0L$htm$
100
#$#$, April 2Lth, 1MML, Sentenia T-AHBP8D ,slip op$-, a#ailable at
http6@@ www$corteconstitucional$go$co@relatoria@1MML@%'1*)'ML$htm$
101
RodrDgue7'Garaito ,n )-1+M4$
102
.imilar problems e(plain also why the interesting public audiences that the "ra7ilian .upreme #ourt
conened, related to the right to health/ or the significant public audiences summoned by the Argentinean
#ourt, concerning the right to freedom of e(pression, ended up in classic instances of Budicial imposition$
24
system of chec&s and balances, which was directed against its defiit in terms of soial
inlusion$ In different ways, both criticisms may sere to demonstrate both that my
%istorial reonstrution of the Qraming period was wrong, and that ,no matter what the
arguments of the Qramers were- the atual -ratie of the system of chec&s and balances is
much more democratic than suggested$
i- %he first obBection to my argument may be directed against what I said concerning the
deliberati#e character of the system$ Academics such as #ass .unstein or .tephen Eolmes
hae been reading the historical origins of 5$.$ constitutionalism in ways that significantly
differ from the one I proposed here$
10)
According to #ass .unstein, for e(ample, the
1Qounding Qathers2 of American constitutionalism created an ambitious system of
1goernment by discussion,2 in which the results would be reached after e(tensie process of
public deliberation$ %his system, .unstein claims, does not reward authority or priilege, but
rather the arguments presented and soled through a general discussion$
104
.tephen Eolmes
has adanced similar considerations in other well'&nown writings$
10*
%he point they ma&e, howeer, is not simply historical$ =ainly, what they defend is a
normatie iew according to which the system of chec&s and balances ,i$e$, through the
introduction of bicameralism/ the e(istence of multiple instances for reising a statute/ etc$-
$or.s 'and s%ould $or. ' in the promotion of public deliberation$ .een in its best light, the
system of chec&s and balances would be faourable to the transformation ,or 1laundering2-
of the people2s preferences6
10+
rather than ta&ing the preferences of people as gien and
unchangeable, the system of chec&s and balances would ta&e those preferences as an
endogenous outcome of a process that inoled, often, preBudice, resignations and inBustice,
and would conse0uently faour their transformation$
=y disagreement with their iews is threefold$ =y first difference is, obiously, historical$ I
hae tried to defend the accuracy of my readings of 5$.$ constitutional history ,is a is
.unstein2s iews- elsewhere,
10J
so I will not attempt to settle this disagreement here$ I will
merely repeat that, in my iew, the American Qramers were not trying to establish a system
of public deliberation, but rather attempting to limit the pernicious effects of factions ,as
=adison put it in 'ederalist No, AC-$ =y second disagreement is more releant, and
concerns the role of the people in public deliberation$ As I said, I defend a particular
approach to deliberatie democracy, which has social inclusion as one of its main
components$ :epried from actie and direct popular engagement, deliberatie democracy
becomes, as Qish&in put it, a system of elite deliberation$ "oth .unstein and Eolmes are
more concerned with elite deliberation than with deliberatie democracy so understood$ .o,
een if their historical reconstruction were right ,which I deny-, they would still be
defending what I would describe as an e(clusie, limited, elitist institutional system$ =y
third criticism is that ,irrespectie of the history behind the adoption of this or that
institutional tool- the e(isting institutional tools are still not ade0uate for the promotion of
deliberation$ %hin&, for instance, about the Budiciary2s capacity to stri&e down a law$ %he
10)
.tephen Eolmes, 1!recommitment and the !arado( of :emocracy,2 in F$ 9lster P R$ .lagstad ,eds$-,
Constitutionalism and (emora) ,#5! 1MLL-, .unstein 1ML*, 1MLL ,n *L-$
104
%his is, for instance, what .unstein maintained in his boo& on T%e Partial Constitution ,n *L- (i$
105
.tephen Eolmes, T%e Anatom) of Antiliberalism ,Earard 5! 1MM)-$
10+
Robert Goodin, 1?aundering !references,2 in F$ 9lster P A$ Eylland ,eds$-, 'oundations of Soial C%oie
T%eor) ,#5! 1ML+-$
10J
Roberto Gargarella, Publi (isussion and Politial Radialism in t%e 0ri!ins of Constitutionalism
,;luwer 2001-$
25
1dichotomous2 powers of Budges ,uphold'stri&e down a law- still represent a ery poor
solution to usually comple(, difficult, delicate, serious, multifaceted problems$ %hus
organi7ed, our institutional system does not faour the e(ploration of nuanced solutions,
faouring a reasoned conersation between different ciil and official actors, who sit
together and begin a discussion, trying to refine their ideas and improe their original ,and
challenged- proposals$ Instead of that, the system offers Budges ,and not many other actors-
ery limited and unattractie tools for interening in the conflict in a rather dramatic ,all or
nothing- way$ >orse than that6 gien both the character of the institutional mechanisms at
their disposal, and the practice that has conse0uently been deeloped, Budicial decisions tend
to be e(tremely difficult to oercome$ .o, the relationship between the different powers
becomes unnecessarily tense, ta&ing the form of an 1institutional battle2 between different
branches$ %his is why we ,members of the legal academia at least- tend to usually as&
ourseles 0uestions li&e the following6 >ould the will of the Budges or the will of the
9(ecutie preail in this caseS >ould the Budiciary finally preent the !resident from
enforcing ,say- his proposal for a 1uniersal health system2S %his, I submit, is an unfortunate
outcome of our institutional practice, which may be useful for some other purposes ,say,
preent hasty decisions- but one that has ery little to do with any reasonable understanding
of democratic dialogue$
=y final criticism, which is related to the former one, is the following6 in my iew it is not
at all clear that a deice such as the system of chec&s and balances helps to refine the oice
of the people ,or transform the people2s preferences in an interesting way-$ %o begin with6
the system of chec&s and balances re0uires the interention of too many actors, before the
eentual enforcement of any law$ 5nfortunately, those who interene in this process hae
ery different democratic credentials, different legitimacy and different interests$ Qor
e(ample, some of them are democratically elected, while some of them are not$ .ome of
them may hae been selected after a recent election and for a short time, while others may
hae been occupying their position for a long time and@or hae life tenure$ .ome of them
may hae been put in place to defend local interests, while others may be in office to defend
national interests$ As a result of this, it is difficult to argue that the laws emerging at the end
of this comple( process actually e(press ,something li&e- the democratic 1will of society2
and not a mere -at%$or. of #ie$s and opposing interests$ As #arlos Nino put it6
there is no guarantee whatsoeer that the result of this aw&ward mi( of different
decisions, which can ultimately respond to a combination of findings from
different debates, carried out by different groups of people at different times, hae
some resemblance to the maBority consensus that obtained after an open and free
debate$
10L

?et me illustrate Nino2s point through an e(ample$ Imagine that we are in a class, within a
small school in a marginal district in %e(as$ Also imagine that we usually discuss
collectiely about all our most releant affairs ,and this through debates where all the
students in the class and also the professor ta&e part-$ Qor instance, we discuss collectiely
about when and how to ta&e the final e(ams, because we want all the students to hae the
best chances to be well prepared ,we do not want, for e(ample, that the e(am too& place in a
date where most students hae many other e(ams, as seemed to be the rule in our school-$
Now, compare this situation with an alternatie one, where the professor decides by herself
all releant issues, but students can fill a claim, and complain about specific decisions by the
professor ,or much worse6 those who can complain are only those students who hae the
108
Nino 1MM2 ,n J- *JL$
26
material resources to do it, say hire a legal assistant-$ 8ne possible outcome of this latter
institutional organi7ation would be this6 a student complains about the professor2s choice/
then the director of the school steps in and decides something/ then the rector of the school
superises the director2s decision/ then %e(as2 "oard of 9ducation reises the whole case$ It
seems undeniable to me, first, that this latter decision'ma&ing process is ery different from
the former one$ "oth of these processes may include chec&s to power/ both of them may
leae room for complaints$ Eoweer, both processes greatly differ in term of the legitimacy
and democratic character of the decisions that they create$ And the fact that ,in the latter
case- more and more authorities, here and there, interene ,perhaps also authorities at the
national leel/ perhaps een the =inistry of 9ducation herself- does not clearly improe the
impartiality or the democratic character of the final decision$ I would not be surprised to
&now, for instance, that after the participation of all these authorities, the final date of the
e(am did not match the needs, demands and possibilities of most students$
ii- %he second obBection to my argument may be directed against what I hae said
concerning the inlusi#e character of the system$ %his &ind of criti0ue can be formulated by
academics related to so'called -o-ular onstitutionalism$ Although there is no agreement on
how to precisely define popular constitutionalism,
10M
for the purposes of this article we can
assume that it is a theory that recogni7es that the people play 3 hae played@should play 3 a
central role in constitutional interpretation, defying the most traditional approach to Budicial
reiew, which is Burocentric and places the 1last word2 in the hands of Budges$ Qor ?arry
;ramer, under popular constitutionalism, 1the role of the people is not confined to acts of
constitution ma&ing, but includes actie and ongoing control oer the interpretation and
enforcement of constitutional law2$
110
#hallenging traditional Burocentric conception of
constitutional interpretation, popular constitutionalism sees this interpretatie process as a
multiparty, contested one$
111
According to this approach, the #ourt would ta&e its decisions
through a continuous dialogue that would not only include the different branches of
goernment but also, and most significantly, social moements and state and local political
actors$
%he status of the theory is, howeer, somehow unclear$ .ometimes, popular
constitutionalism seems to be ma&ing a %istorial point, by showing that during the Qraming
period the people used to play, and was supposed to play, a more crucial role in
constitutional interpretation$ ,In other words, for this iew, it is not true that the Qramers
proposed the .upreme #ourt as the e(clusie or final interpreter of the #onstitution-$ 8ther
authors within popular constitutionalism seem to be less concerned with history$ %heir main
claim is, instead, that the urrent -ratie of Budicial reiew significantly differs from what
traditional Burocentric approaches claim about that same practice$ In both cases, howeer, a
normatie proBect seems to be present6 it is either necessary to recoer those old ,more
popular'sensitie- practices, or to strengthen their actual current manifestations$
10M
%om :onnelly, for e(ample, assumes that 1leading theorists Nof popular constitutionalismO fail to offer a
common reading of constitutional history, a common methodology, or een a common set of remedies2 %om
:onnelly, Ma.in! Po-ular Constitutionalism 5or.* Earard !ublic ?aw >or&ing !aper ,2011- No$ 11'2M, 1$
110
;ramer ,n 44- M*M$ Also ?arry ;ramer, T%e Peo-le T%emsel#es, Po-ular Constitutionalism and Judiial
Re#ie$, ,85! 200*-$
111
Fac& "al&in, Li#in! 0ri!inalism ,Earard 5! 2011-/ R !ost P R .iegel, 1Roe Rage6 :emocratic
#onstitutionalism and "ac&lash2 ,200J- &ar#ard Ci#il Ri!%ts-Ci#il Liberties La$ Re#ie$* 42, )J)/ Reea
.iegel, 190uality %al&6 Antisubordination and Anticlassification <alues in #onstitutional .truggles oer
"rown2 ,2004- &ar#ard La$ Re#ie$, 11J, 14J0$
27
Although I am personally interested in popular constitutionalism, and sympathi7e in part
with its proBect, I want to differentiate it from what I hae been claiming in this piece$ =y
main disagreements with members of popular constitutionalism are not related to their
historical readings$
112
I do hae problems, howeer, with their approach to deliberation and,
more generally, with their institutional iew$ %he main point is that, in the conte(t of
economic, social and political ine0ualities ,a conte(t that, I assume, is characteristic of many
of our institutional systems-, the possibilities of meaningful popular participation are
significantly limited$ I am not claiming that, within the conte(t of une0ual societies, people
tend to participate less 3 possibly the contrary is true$ >hat I am trying to say is that in
conditions of profound ine0ualities, the people2s chances to influence politics through their
participation are substantially reduced$ And this would be so for numerous reasons$
Qirst, the costs of collectie action are usually so high ,particularly in diided and une0ual
countries- that opportunities for popular participation tend to become limited to rather
e(treme or ery heated cases ,i$e$, situations of dire inBustice, abortion-$ .econd, participants
in legal conersations come usually from different social sections of society, which tends to
create serious difficulties in the instances of dialogue6 deliberation becomes thus one
between powerful minority actors ,normally coming from the upper classes-, and large but
wea& groups of disadantaged$ %hird, in conte(ts of inBustice as those that were described
aboe, the popular sectors hae an unBustifiably une0ual chance to ma&e their iews preail
,i$e$, protesters tend to be legally prosecuted, and their demands are only rarely ta&en into
account-$
11)
9en more so, within the framewor& of an institutional system that resered the
legitimate use of iolence to the .tate$ In sum, popular constitutionalism is relying on an
informal practice, which 3 not surprisingly 3 tends to be more detrimental than beneficial to
the interests of the people at large$
114
%his is 3 I submit 3 why one needs to urge the adoption
of egalitarian institutional reforms, among other things, capable of changing the basic
structure of our institutional system6 we hae no good reasons for relying on a social
practice that has normally been hostile to popular mobili7ation$
11*

*egal alienation+ ‘We the people’ outside of the Constitution
I mentioned two problems about the system of chec&s and balances6 one related to its
deliberation'deficit, the other related to its deficit in terms of social inclusion$ In what
follows I will dedicate some additional time to the discussion of the second problem, which
I find particularly releant and also usually neglected by legal theory$ =ore specifically, I
want to e(plore some of the difficulties deried from haing institutions that ma&e it so
difficult for the people at large to control their representaties and gain a say in the decision'
ma&ing process$ I will call this a situation of le!al alienation$
11+
At this point I am not able
112
%hen, I do not tend to share, for e(ample, Ale(ander P .olum harsh criticisms on this issue$ Ale(ander P
.olum ,n +M-$
113
Eelen Qenwic&, 1%he Right to !rotest, the Euman Rights Act and the =argin of Appreciation2 ,1MMM- +2
T%e Modern La$ Re#ie$ 4, 4M1/ Roberto Gargarella, 1?aw and .ocial !rotests2 ,2012- + Criminal La$ and
P%iloso-%) 1*$
114
I admit that this is a fundamentally intuitie claim6 the point needs an empirical support that I am not able
to proide at this stage of my argument$
11*
9(amining the tensions between Budicial reiew and political participation see Feremy >aldron, 1A Right'
"ased #riti0ue of #onstitutional Rights2 ,1MM)-, 1) 0xford Journal of Le!al Studies 1, *1$
11+
Qor the concept of alienation, see ;arl =ar(, Eonomi and P%iloso-%i Manusri-ts of ADQQ ,first
published 1L44, >ilder !ublications 20116 L+'J-$
28
to say much about this problem in general, but I do want to e(plore some of its implications
for dialogic constitutionalism$
11J
8ne conse0uence that follows from situations of legal alienation and 1fear of maBority
action2 is that instances of inter'branch dialogue, which in principle result appealing and
worth'promoting, become for this reason much less interesting$ In other words, democratic
dialogue loses much of its appeal when it is reduced to a dialogue between elites that are
1too far remoed2 from the people ,=adison, 'ederalist No, HH-$ >e would then triiali7e
deliberatie democracy if we were to celebrate the emergence of new instances of inter'
branch dialogue as a triumph of democratic dialogue$
%his problem, I beliee, seems particularly releant for contemporary constitutional theory$
%hin& for e(ample about the wor& of =ar& %ushnet and Feremy >aldron, this is to say the
wor& of two legal scholars who hae been leading the academic discussion against
traditional forms of Budicial reiew$
11L
As we &now, both of them hae been harsh critics of
Budicial reiew and both of them hae faoured alternatie options that in a certain way
1recoer2 the 1last word2 for legislatie maBorities$
11M
Now, een though I substantially agree
with the purposes and moties of their academic underta&ing, I want to call attention to a
ris& that may affect it$ I am thin&ing about the ris& of assuming a fundamental identity
between legislatures and the people at large, when eerything suggests the e(istence of a
profound gap between the elected and their electors$
?et me e(plore this claim by using Feremy >aldron2s wor& as an e(ample 3 particularly, his
iews as deeloped in his boo& T%e (i!nit) of Le!islation,
120
>aldron2s boo& represents a
significant ,and necessary- effort to defend the role of legislatie bodies, within an academic
conte(t that has traditionally been contemptuous and disdainful towards #ongress and
eerything related to it$
121
!art of the merit of the boo& 3 and of >aldron2s proBect, in
general 3 is that it helps to balance a iew that became dominant, particularly in the legal
academia$ In his words, academics hae deeloped 1an ideali7ed picture of Budging andZa
disreputable picture of legislating2$
122
%his is why he tries to 1recoer and highlight ways of
thin&ing about legislation that present it as a dignified mode of goernance and a respectable
source of law2$
12)
In the end, he wants to deelop 1a ros) picture of legislatures that matched,
in its normatiity, perhaps in its naiete, certainly in its aspirational 0uality, the picture of
117
%he problem of popular e(clusion ,and conse0uently le!al alienation- that I am thin&ing about is similar to
the one that Roberto =angabeira 5nger once denounced in his often 0uoted reference to the 1dirty little secret
of contemporary Burisprudence2, Roberto =$ 5nger, 5%at S%ould Le!al Anal)sis 4eome9 ,<erso 1MM+- J)$
11L
%he comment could also be directed at the "ritish "enthamite school adocating for a reinigoration of
parliamentary politics$ .ee for e(ample, the wor& of Feffrey Goldsworthy, #onor Gearty, etc$ ,Goldsworthy n
J*-$ 9(ploring ,in different ways- these iews, see :aid :y7enhaus, 1%he ?eft and the ]uestion of ?aw2
,2004- V<II Canadian Journal of La$ and Juris-rudene 1/ :aid :y7enhaus, 1%he 9nd of the Road to
.erfdomS2 ,201)-, +) 3ni#ersit) of Toronto Press* )10/ =artin ?oughlin, S$ord < Sales, An Examination of
t%e Relations%i- 4et$een La$ < Politis ,Eart 2000-/ %om !oole, 1?egitimacy, Rights and Fudicial Reiew2
,200*- 2* 0xford Journal of Le!al Studies 4, +MJ$
119
%ushnet 2004 ,n M)- 200L ,n 12- 200M ,n 1)L-/ Feremy >aldron, 1.ome =odels of :ialogue "etween
Fudges and ?egislators2 ,2004-, 2) Su-reme Court La$ Re#ie$ J/ %he #ore of the #ase Against Fudicial
Reiew2 ,200M- 11* ;ale La$ Journal 1)4L$ Also >aldron 1MMM ,n )0- 1MMM ,n )1-
120
>aldron ,n )0-$
121
%his has been particularly so since -ubli %oie t%eor) began to gain attraction within ?aw .chools$ Qor
public choice theory, see for e(ample G "rennan P ? ?omas&y, (emora) < (eision ,#5! 1MMJ-/ Fames
"uchanan, T%e Limits of Libert) ,first published 1MJ*, ?iberty Qund 2000-$
122
>aldron ,n )0- 2$
123
Ibid$
29
courts 31the forum of principle2 etc$' that we present in the more eleated moments of our
constitutional Burisprudence2$
124
In my iew, the difficulty with this >aldronian approach is that, een assuming a rosy
picture of how legislatures wor&, the representatie system remains profoundly unattractie
from a democratic perspectie$
12*
%he problems affecting our legislatures do not merely
depend on the bad faith, corruption or greediness of legislators$ %hey derie from a plurality
of sources ,we hae e(plored some of them-, including the irtual absence of popular
controls, which tends to alienate the people from ordinary politics$ Qor these and other
related reasons 3 the system has been designed for much simpler societies, composed of
few, internally homogeneous groups 3 I would suggest that our present legislatures are
structurally incapable of representing the multiplicity of iews and oices e(isting in
contemporary societies$
12+
As a conse0uence, we 3 meaning those who are coninced about
the merits of haing an inclusie, deliberatie democracy 3 hae few reasons to celebrate
the changes that are seemingly ta&ing place in contemporary constitutionalism$ %o be more
precise6 there is nothing particularly e(citing in the fact of haing contemporary
constitutionalism slowly moing away from its traditional picture of pure Budicial
dominance and towards a different one, where legislatures preail$
%he problem I am referring to should be particularly clear for all those who hae been
critici7ing Budicial reiew because of its elitism/ their homogeneous attitudes/ their
conseratism/ their defence of 1priate property and disli&e of trade unions, NtheirO strong
adherence to the maintenance of order, distaste for minority opinions, demonstrations and
protestsZ2/ etc$
12J
In other words, for those who hae been obBecting to the 1politics of the
Budiciary2 as a conse0uence of its profound elitism, the response should in no case be
legislatie elitism$ And, of course 3 it should go without saying 3 our distrust of #ongress or
the Fudiciary in no way spea&s in faour of een less democratic alternaties, such as those
based on .chmittian proposals for ta&ing the 9(ecutie as the guardian of the political
#onstitution$
12L
8f course, there are democratic reasons that still, and in spite of all the e(isting institutional
difficulties, may ma&e us prefer legislatie dominance to Budicial dominance$ Eoweer, the
main point remains intact6 for those of us who faour deliberatie democracy, a system of
legislatie supremacy may be an improement, but not a solution$ As ;arl =ar( would hae
put it, self'goernment needs more than legislatures6 it re0uires a different type of
constitutional organi7ation$
12M

124
Ibid$ Qor =ar& %ushnet through 1dialogic Budicial reiew,2 we 1adance the #alue of demorati self-
!o#ernane b) lea#in! t%e final deision to t%e le!islature2$ %ushnet ,n 10- 212, emphasis added$
125
%o state this does not mean to say that >aldron or %ushnet refer to legislatures and to the people
indistinctly ,see, for e(ample, >aldron 2012-$ "ut I do thin& that in part of their wor& this distinction is not
sufficiently stressed, which may create confusions regarding the actual attractieness of the alternaties they
propose$
126
I hae e(plored other structural problems in Roberto Gargarella, 1Qull representation, deliberation, and
impartiality2, in F$ 9lster ,ed$-, (eliberati#e (emora) ,#5! 1MML-$
12J
Fohn Griffith, 1%he !olitical #onstitution2 ,1MJM- 42 T%e Modern La$ Re#ie$ 1/ ?oughlin ,n 1)2- 102$
128
:y7enhaus ,n 1)2-/ Gargarella ,n J4-$
12M
Qor him, 1In democracy, the constitution, the law, the state itself, insofar as it is a political constitution, is
only the self'determination of the people, and a particular content of the people$ ;arl =ar( 1#ontribution to
the #riti0ue of Eegel2s P%iloso-%) of Ri!%t*2 in R$ %uc&er ,ed$-, T%e Marx-En!els Reader ,first published
1L4), Norton P #ompany 1MJL- 21$
30
%his discouraging situation is what in the end e(plains why, een in the most promising
cases, what we find are processes of elite discussion, mostly promoted by political or
economic minorities, for their own benefit$ %his conclusion seems also applicable to the
case of the #anadian #harter, which 1has commonly been seen as a reolution in the
relationship between the .upreme #ourt and the legislatures2,
1)0
, and its notwithstanding
clause 3 a clause that has been described as 1the #harter2s homage to !arliamentary
:emocracy2$
1)1
:aid "eatty, for e(ample, stated6 1Nfor most peopleO rather than the
democratic and progressie institution the theory described,2 the new established process of
Budicial reiew appears 1as the ery regressie and anti'democratic institution which the
sceptics hae always claimed it to beZIn addition to its ery anti'democratic
underpinnings, it will appear to those starting a challenge that Budicial reiew is ery
e(pensie and regressie as wellZ It is impossible not to notice how those who already do
ery well and enBoy considerable influence in our country2s affairsZwere 0uic& to ta&e
adantage of the #harter2$
1)2
9en in this promising case, I would add, the people2s oices
appear either inaudible or subordinated to the desires of political or economic elites$
1))

%o ta&e another e(ample, thin& about the problems that followed the Budicial decision in the
famous Mendoza case, in Argentina$
1)4
Mendoza, as we &now, represents one of the most
remar&able cases of structural litigation and Budicial dialogue in ?atin America, een though
many other e(amples desere similar attention$
1)*

Initiated in 2004, the case concerned damage stemming from the contamination of the
=atan7a'Riachuelo Rier, which passes through "uenos Aires$ .eeral million people lie
alongside or near the rier$ %he pollution resulted in massie iolations of health and
enironmental rights$ Numerous actors with different leels of authority shared
responsibility for the problem, including the National Goernment, the !roince of "uenos
Aires, the #ity of "uenos Aires, and 44 priate companies that had dumped ha7ardous waste
into the rier$ In this conte(t, and facing a situation of perennial political paralysis, the #ourt
undertoo& to interene, and it did so in an une(pected and original way$ %he #ourt
conened a series of public audiences, to which all parties inoled were inited$
%he beginning of the case could not hae been more spectacular$ %he #ourt recogni7ed the
structural nature of the case, refused to limit itself to the binary options of traditional Budicial
reiew ,to either uphold or inalidate a statute-, called open public audiences, and engaged
1)0
;ent Roach, 1#onstitutional and #ommon ?aw :ialogues "etween the .upreme #ourt and #anadian
?egislatures2 ,2001- L0 La Re#ue du 4arreau Canadien 4L2$
1)1
!eter Russell, 1%he Notwithstanding #lause6 %he #harter2s Eomage to !arliamentary :emocracy2 ,200J-
Poli) 0-tions* Qebruary, +*,
1)2
:aid "eatty, Tal.in! &eads and t%e Su-remes2 T%e Canadian Prodution of Constitutional Re#ie$
,#arswell 1MM0- 2*2')$ Also see his 1A #onseratie2s #ourt6 %he !olitici7ation of the ?aw2 ,1MM1- 41
3ni#ersit) of Toronto La$ Journal 14J$ .ee also Allan Eutchinson, 1>aiting for #8RAQ$ 8r the "eatification
of the #harter2 ,1MM1- 41 3ni#ersit) of Toronto La$ Journal )*L$ .ee also A Eutchinson P A !etter, 1!riate
Rights@!ublic >rongs$ %he ?iberal ?ie of the #harter2 ,1MLL- )L 3ni#ersit) of Toronto La$ Journal 2JL$
133
Andrew !etter made a similar point, concerning the way in which so'called democratic dialogue tends to
become an elite dialogue, !etter ,n 12- 1)$
1)4
A well'supported and ery pessimistic approach to the "ra7ilian case, in 8ctaio Qerra7, 1Earming the !oor
%hrough .ocial Rights ?itigation6 ?essons from "ra7il2 ,2011- LM Texas La$ Re#ie$ 1+4)$
135
%hese include Verbits.)* &oraio sP %abeas or-us, decided by Argentina^s .upreme #ourt ,200*-
,concerning prisoners2 rights-/ and many decisions of the #onstitutional #ourt of #olombia including
Sentenia %'L4J ,2000-, prisoners2 rights-/ Sentenia %'*M0 ,1MML-,concerning state'protection of human rights
adocates under threat-/ and Sentenia %'02* ,2004- ,concerning the situation of internally displaced persons-$
.ee #ourtis ,n 2L-$
31
in a fran& conersation with e(ecutie authorities$ In considering and reising the proposed
clean'up plan, the #ourt enlisted the help of the public, NG8s, and uniersity e(perts ,rather
than abstaining on grounds of lac& of technical capacity-$ It helped to ma&e preiously
unheard oices audible$ Eoweer, the entire process has also been subBected to different and
serious criticisms$ Qor e(ample, some legal e(perts described the clean'up process as
1clearly top'down, e(ceedingly centrali7ed2, which made the ictims feel that 1the Budicial
process2 was 1closed to them, as it preented their access to the basin authorities2$
1)+
In
addition, the dialogic process was also undermined by some significant allegations of
corruption$
%here are many things to say about this process, but here I Bust want to mention a couple of
them, related to what I called situations of legal alienation$ =y impression is that the
process gained attraction because of its attempts to re'connect some of the most
disadantaged groups of society with the decision'ma&ing process$ Eoweer, in the end the
entire process turned to be much less attractie than e(pected, because it began to deelop in
the contrary direction$ =ore specifically, the people began to reali7e that the process
continued to be managed 1from aboe,2 and that they had actually few chances to gain
control oer it$ I am not claiming that the process was a failure ,it was not-, or that the #ourt
coordinated it in bad faith ,which is not true-$ >hat I am saying, instead, is that, gien that
the institutional system has not been improed, problems related to its elitist features ,i$e$,
1top'down2 directies, difficulties to ensure popular controls/ hyper'centrali7ation of power-
should not come as a surprise$
Conclusions
At the beginning of this article, I Bustified the e(citement with which many scholars, li&e
me, receied the deelopment of dialogic constitutionalism, through two main and related
reasons$ 8n the one hand, we presupposed that this deelopment would bring about
interesting and democratic improements, concerning the traditional system of Budicial
reiew$ =ainly, we assumed, these dialogic changes would help us ,X>e, the peopleY- to re'
gain a central role in the process of constitutional interpretation$ 8n the other hand, we also
assumed that these dialogic deices would foster democratic deliberation, thus reducing the
influence of interest'groups politics$ In other words, we assumed that these new instruments
would help deliberatie democracy gain force and presence #is a #is other less attractie
conceptions of democracy, such as democratic pluralism$
Now, in the conclusion of this analysis, I must say that the picture loo&s gloomier than
imagined$ In most countries 3 and most notably in ?atin American countries 3 we hae
significantly renoated and reinigorated our commitment to rights, while &eeping the core
of our institutional system, this is to say the mechanism of chec&s and balances,
fundamentally unchanged$ As a conse0uence, many of the old ices and elitist features of
the system are still in place, while many of the promises of dialogic constitutionalism
,particularly in what concerns the enforcement of social rights- appear to be still too
dependent on the good will and discretion of those in charge of promoting it$
%hese unfortunate circumstances mostly affect countries that hae not introduced any formal
changes to their constitutional organi7ation, so as to facilitate dialogue 3 ?atin American
countries in particular, gien that most of them still retain a hyper'centrali7ed institutional
136
=ariela !uga, 1?itigio y cambio social en Argentina y #olombia,2 ,#?A#.8, .erie :igital 2012- M)$ A
more optimistic approach in "ergallo ,n 2-$
32
system$ Eoweer, I should say that things do not loo& substantially different if we focus our
attention on the Ne$ Common$ealt% Model of Constitutionalism* where attractie and
formal institutional changes were actually adopted$ And this is so because 3 eerywhere 3
the representatie system seems to hae become in control of a political elite and also
increasingly subBect to the demands and pressures of interest groups$ 1>e the people2 still
remain outside of the #onstitution, fundamentally incapable of managing and controlling
our own public affairs$
Now, my worries about the perceied limits of dialogic constitutionalism should not be
ta&en as a defence of the institutional status 0uo$ %his prealent system causes the
institutional problems that dialogic constitutionalism has been trying to oercome without
much success$ >e need to replace a system of chec&s and balances that obstructs rather than
promotes public collectie dialogue/ and we need to transform this institutional system that
has become prey of political and economic elites$ In the face of these challenges, the modest
improements offered by the new dialogic model of constitutionalism can be celebrated as
small steps in the right direction$ %hey are, howeer, small steps that re0uire some reision
and some substantial improements$
%he re0uired changes are neither utopian in nature, nor impossible to imagine$ :emocratic
theory is there to come in our help, and so it is the accumulated comparatie e(perience,
with its failures and its achieements$ %he main goal to be achieed is still clear6 we need to
ma&e our constitutional systems more hospitable to our democratic priorities$ In other
words, we need to finally bring 1>e the people2 bac& into the #onstitution$
33

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