Deliberative Constitutionalism

Abstract

Deliberative constitutionalism incorporates insights from constitutional and deliberative democratic theory in order to present a more complete picture of constitutional practice than either of its source disciplines can offer. This chapter identifies some of the hybrid theory’s novel contributions. Kong and Levy claim that a constitution’s overriding objective should be to create an institutional framework for rigorous and inclusive public deliberation that helps a polity work through specific social controversies (e.g. same-sex marriage). The authors therefore argue that the hybrid theory brings to the general normative claims of deliberative democratic theory a specifically institutional and legal focus. They also argue that deliberative constitutionalism redirects longstanding debates in constitutional theory away from the standard courts–legislatures axis. The chapter examines what deliberative constitutionalism might entail for an assortment of actors (e.g. judges and ordinary citizens) and constitutional features (e.g. domestic and international rights, and federalism) in democracy and governance.