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Published online by Cambridge University Press: 02 January 2018
Special thanks to Helene Landemore (Yale University) for her insightful comments and suggestions.
1. For the purposes of this review, I follow Mendes here in using the term ‘constitutional courts’ in an expansive sense to include any unelected court that has the power to strike down a statute for violating the constitution: Hübner Mendes, C Constitutional Courts and Deliberation Democracy (Oxford: Oxford University Press, 2013) p 74. For much of the review, I will use the term ‘court’ or ‘courts’ as shorthand for constitutional courts.CrossRefGoogle Scholar
2. Ibid, pp 51–53.
3. Ibid, p 107.
4. Ibid, p 115.
5. Ibid, pp 196–219.
6. See Mansbridge, J et al ‘A systematic approach to deliberative democracy’ in Parkinson, J and Mansbridge, J (eds) Deliberative Systems: Deliberative Democracy at the Large Scale (Cambridge, UK: Cambridge University Press, 2012).Google Scholar
7. Hübner Mendes, above n 1, p 227.
8. Barber, B Strong Democracy (Berkeley, CA: University of California Press, 1984).Google Scholar See the introduction and most of the articles in Fung, A and Wright, O (eds) Deepening Democracy (London: Verso, 2003).Google Scholar
9. Dryzek, J ‘Legitimacy and economy in deliberative democracy’ (2001) 58 Pol Theory 651, citing J Cohen ‘Deliberation and democratic legitimacy’ in Hamlin, A and Pettit, P (eds) The Good Polity: Normative Analysis of the State (Oxford: Blackwell, 1989) pp 17–34.Google Scholar Similarly, Benhabib, S argues, ‘Legitimacy in complex democratic societies must be thought to result from the free and unconstrained deliberation of all about matters of common concern’: ‘Toward a deliberative model of democratic legitimacy’ in Benhabib, S (ed) Democracy and Difference: Contesting the Boundaries of the Political (Princeton, NJ: Princeton University Press, 1996) p 68. In contrast to these participatory definitions, Mendes defines the first condition of deliberative democracy as presupposing ‘the need to take a collective decision that will directly affect those who are deliberating, or indirectly people who are absent’ (p 14). Mendes does not address how indirect participation is an adequate substitute.CrossRefGoogle Scholar
10. Baiocchi, G Militants and Citizens: The Politics of Participatory Democracy in Porto Alegre (Stanford, CA: Stanford University Press, 2005).CrossRefGoogle Scholar
11. Landemore, H ‘Inclusive constitution-making: the Icelandic experiment’ (2015) J Pol Phil forthcoming: available at http://onlinelibrary.wiley.com/doi/10.1111/jopp.12032/abstract (accessed 18 January 2015).CrossRefGoogle Scholar
12. Richardson, H Democratic Autonomy: Public Reasoning about the Ends of Policy (Oxford: Oxford University Press, 2003).Google Scholar
13. Much of the focus of deliberative theory is on mini-publics, whose relationship to mass participation is questionable. In his foundational work, James Fishkin acknowledges that his ‘deliberative polls’ sacrifice mass participation in order to achieve equality and deliberation: Fishkin, J When the People Speak (Oxford: Oxford University Press, 2009)Google Scholar. However, this acknowledgement would not help Mendes show how deliberative democracy can justify the undemocratic practice of judicial review. Unlike in judicial review, the deliberative poll's sacrifice of mass participation is compensated and addressed in a variety of ways. While courts are populated and selected by elites who serve long terms, the members of a deliberative poll are chosen through stratified random sampling that occurs repeatedly, which intends to make them an accurate picture of the population and creates more frequent opportunities for any member population to be selected. Lastly, few advocate that the decisions of deliberative polls or other mini-publics should be binding rather than advisory. For some deliberative democrats, mini-publics still excessively sacrifice the value of mass participation. See eg La Font, C ‘Deliberation, participation, and democratic legitimacy: should deliberative mini-publics shape public policy’ (2015) J Pol Phil forthcoming; available at http://onlinelibrary.wiley.com/doi/10.1111/jopp.12031/full (accessed 18 January 2015).CrossRefGoogle Scholar
14. See eg Chambers, S ‘Rhetoric and the public sphere: has deliberative democracy abandoned mass democracy?’ (2009) 37(3) Pol Theory 323.CrossRefGoogle Scholar
15. For a summary of the various solutions to the problem of how to deliberate in modern, large societies, see Dryzek, above n 9.
16. This is the position of Richardson, above n 7, and it seems to be the position of other deliberative democrats who focus on legislative deliberation. See Gutmann, A and Thompson, D Why Deliberative Democracy (Princeton, NJ: Princeton University Press, 2004);CrossRefGoogle Scholar Young, IM Inclusion and Democracy (Oxford: Oxford University Press, 2000). Gutmann and Thompson argue that elections may yield better deliberators and that freedom includes that of not participating in politics in order to devote that time to other pursuits: ibid, p 31. Young is interested in representation in multiple sites, such as corporations.Google Scholar
17. For a minimalist theory, see eg Riker, W Liberalism against Populism: A Confrontation Between the Theory of Democracy and the Theory of Social Choice (Prospect Heights, IL: Waveland Press, 1982).Google Scholar For a pluralist one, see eg Dahl, R A Preface to Democratic Theory (Chicago: University of Chicago Press, 1956).Google Scholar
18. Gutmann and Thompson, above n 16.
19. Mendes' target is Ronald Dworkin, who imagines a Herculean judge who deliberates without the help of others. It is unclear that Dworkin actually wants judges to act in this way. After all, no judge is Hercules. The picture serves certain illustrative purposes. It is a theoretical exercise to help clarify the capabilities of an ideal judge. Perhaps for this reason, Mendes adopts most of Dworkin's theory of interpretation.
20. Bellamy, R Political Constitutionalism: A Republican Defence of Democracy (Cambridge, UK: Cambridge University Press, 2007);CrossRefGoogle Scholar Waldron, J Law and Disagreement (Oxford: Oxford University Press, 1999). Note that neither Jeremy Waldron nor Richard Bellamy are deliberative democrats.CrossRefGoogle Scholar
21. Hübner Mendes, above n 1, pp 46–47.
22. Indeed, Mendes redefines deliberative democracy's premises of equal participation of deliberative theory to make them far less exacting. The requirement of participation is watered down so that deliberative theory ‘presupposes the need to take a collective decision that will directly affect those who are deliberating, or indirectly people who are absent’: ibid, p 14.
23. For two similar accounts that influenced the one offered here, see Eskridge, W ‘Pluralism and distrust’ (2005) 114 Yale L J 1294;Google Scholar Post, R and Siegel, R ‘Roe Rage: democratic constitutionalism and backlash’ (2007) 42 Harv C R–C L L Rev 427–430.Google Scholar
24. Hübner Mendes, above n 1, pp 91–93, 185–188.
25. Mendes does state that the judges should listen and consider the reasons put forth by the legislature and civil society in deciding on what decision best achieves justice. But this theory is a small modification to the underlying Dworkinian theory of interpretation.
26. Hübner Mendes, above n 1, pp 86, 93.
27. C Zurn ‘Deliberative democracy and judicial review’ [2002] 4/5 Law & Phil 479 (criticising Ely for embracing a minimalist theory of democracy and distinguishing it from Habermas’ deliberative approach).
28. Ibid, at 520–521.
29. Judges may even disagree with each other and with Habermas on which rights are necessary or conducive to deliberation in civil society.
30. See Eskridge, above n 23, at 1306.
31. Lawrence v Texas, 539 US 558, 582 (2003) (O'Connor J, concurring in the judgment); Eskridge, above n 23.
32. Dixon, R ‘Creating dialogue about socioeconomic rights: strong-form versus weak-form judicial review revisited’ (2007) 5 Int'l J Const L 391.Google Scholar
33. Eskridge, above n 23, at 1294.
34. Mendes does address and incorporate ‘dialogic’ theories of judicial review, but these are different than the view I have put forth below.
35. 505 US 833 (1992).
36. 410 US 113 (1973).
37. See eg Sunstein, C One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, MA: Harvard University Press, 2001) p 37.Google Scholar
38. Post and Siegel, above n 23, at 427–430.
39. N Devins ‘How Planned Parenthood v Casey (pretty much) settled the abortion wars’ (2009) 118 Yale L J 1318.
40. Another example is the Supreme Court of Canada's Patriation Reference [1981] 1 SCR 753. After a repeated series of breakdown in negotiations between Prime Minister Trudeau and the provinces, Trudeau threatened to unilaterally pass patriation and the Charter of Rights and Freedom through Parliament. The provinces argued that convention requires unanimous provincial approval of substantial constitutional change. The Supreme Court of Canada ruled that ‘a substantial degree of provincial consent’ was necessary. The decision hit a middle ground between the two parties’ positions, both of which would have made negotiation and deliberation impossible.
41. Ibid.
42. One of Mendes’ contributions is to try to replace the two-pronged distinction between external and internal with a three-part one of pre-decisional, decisional and post-decisional, to better measure deliberative performance. I use the first distinction for the sake of simplicity: Hübner Mendes, above n 1, pp 113–118.
43. Ibid.
44. J Ferejohn and P Pasquino ‘Constitutional adjudication: lessons from Europe’ (2003-2004) 82 Tex L Rev 1671 at 1692.
45. Hübner Mendes, above n 1, pp 96–97.
46. Rehnquist, W The Supreme Court (New York: Vintage Books, 2000) p 256;Google Scholar Eisgruber, C The Next Justice Repairing the Supreme Court Appointments Process (Princeton, NJ: Princeton University Press, 2009) pp 56–60.Google Scholar
47. Rehquist, ibid.
48. See Ferejohn and Pasquino, above n 42, at 1697.
49. Kommers, D and Miller, R The Constitutional Jurisprudence of the Federal Republic of Germany (Durham, NC: Duke University Press, 3rd edn, 2012) p 29.Google Scholar
50. Stone Sweet, A Governing with Judges: Constitutional Politics in Europe (Oxford: Oxford University Press, 2000).CrossRefGoogle Scholar
51. Kommers and Miller, above n 48, p 38.
52. Hübner Mendes, above n 1, p 131.
53. Ibid, p 130.
54. Ibid, pp 122–139, 142–175.