Non-Finality and Dialogue in Constitutional Interpretation

Abstract

By looking both at the European and contemporary US constitutional theory debates, this chapter proposes an analytic taxonomy of contemporary non-court centric approaches to constitutional interpretation: those that have concluded that the most promising response to persistent concerns about a democratic deficit is to shift the focus from courts as a forum of principle to the dialogue between courts and other actors, ranging from (other) courts to legislatures, administrative agencies, private actors, civil society stakeholders, and the wider public, in the jurisgenerative process. The goal is, by following the emergent literature on ‘weak’, proceduralist, and democratic-experimentalist forms of judicial review, to argue the virtues of the latter. Democratic experimentalism denotes a modality of judicial review that allows judges to enforce avowedly open-ended, fundamental, constitutional commitments in a way that institutionalizes—rather than excludes—continuing, social, and democratic determination and the progressive clarification of what constitutional commitments can and should come to mean in practice. Judicial review may deepen democracy rather than limit it by providing a focus and reason for public deliberation. The hope is to provide, by setting out contrasting positions, a foil for discussion and to show that the desirability of judicial review is not merely complacent assumption in contemporary constitutional and political thought, but can be supported on democratic grounds as deliberation-enhancing.