Constitutional Deliberation Research Articles

Democratic Deficits of a Dualist Deliberative Constitutionalism: Bruce Ackerman and Jurgen Habermas

Abstract. This paper analyzes the deliberative constitutional models of Bruce Ackerman and Jürgen Habermas. It argues that Ackerman’s version of democratic dualism sets strict normative distinctions between constitutional and ordinary political deliberations. As a result, it ignores everyday political processes and citizens’ ordinary public deliberations and is unresponsive to ongoing social changes in a liberal pluralist society. On the other hand, Habermas’s discursive constitution defends a dynamic relationship between constitutional and ordinary politics. It provides a better model of a continuous constitutional development that is more open to new social and historical circumstances.

Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System

Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System. By J. Mitchell Pickerill. Durham, NC: Duke University Press, 2004. 208p. 21.95 paper.J. Mitchell Pickerill's richly layered book shows the possibilities and limits of “constitutional deliberation” in Congress, defined as “reflection and debate over the scope of federal powers under the Constitution in the context of legislation” (p. 11). Pickerill says that such institutional introspection is rare until Congress is confronted with activist majorities on the Supreme Court, as witnessed in the beginning and end of the twentieth century. But even when using constitutional deliberation to rescue stricken laws and protect future ones, Congress incorporates, rather than “overrides,” the latest judicial doctrine on the proper balance of power between the federal government and the states. He compares the use and specter of judicial review to a presidential veto and concludes that such Congress–Court dynamics show bargaining and compromise. However, interpretive equality is not necessary in this view of a healthy separation-of-powers system.

Constitutional deliberation in Congress: the impact of judicial review in a separated system

In Constitutional Deliberation in Congress J. Mitchell Pickerill analyzes the impact of the Supreme Court’s constitutional decisions on Congressional debates and statutory language. Based on a thorough examination of how Congress responds to key Court rulings and strategizes in anticipation of them, Pickerill argues that judicial review—or the possibility of it—encourages Congressional attention to constitutional issues. Revealing critical aspects of how laws are made, revised, and refined within the separated system of government of the United States, he makes an important contribution to “constitutionalism outside the courts” debates. Pickerill combines legislative histories, extensive empirical findings, and interviews with current and former members of Congress, congressional staff, and others. He examines data related to all of the federal legislation struck down by the Supreme Court from the beginning of the Warren Court in 1953 through the 1996–97 term of the Rehnquist Court. By looking at the legislative histories of Congressional acts that invoked the Commerce Clause and presented Tenth Amendment conflicts—such as the Child Labor Act (1916), the Civil Rights Act (1965), the Gun-Free School Zones Act (1990), and the Brady Bill (1994)—Pickerill illuminates how Congressional deliberation over newly proposed legislation is shaped by the possibility of judicial review. The Court’s invalidation of the Gun-Free School Zones Act in its 1995 ruling United States v. Lopez signaled an increased judicial activism regarding issues of federalism. Pickerill examines that case and compares congressional debate over constitutional issues in key pieces of legislation that preceded and followed it: the Violence Against Women Act of 1994 and the Hate Crimes Prevention Act of 1997. He shows that Congressional attention to federalism increased in the 1990s along with the Court’s greater scrutiny.

Book Notes: Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System, by J. Mitchell Pickerill

Book Notes: Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System, by J. Mitchell Pickerill

"Raise the flag and let it talk": On the use of external norms in constitutional decision making

Landmark judgments in 2003 prompted comments that the U.S. Supreme Court had abandoned a tradition of insularity in favor of allowing external norms to inform its internal constitutional deliberations. Viewing these judgments against the backdrop of the Court's prior jurisprudence, this essay finds a willingness to look at foreign law, as well as an unexplained selectivity with regard to the circumstances in which this is deemed to be appropriate. It identifies two threshold criteria for consultation: the presence of similar experiences; and the resolution of questions in accordance with norms derived from a shared commitment to fundamental rights. Even when both criteria are met, the Court is likely to rely only on those external norms that are imbued with internal resonance; that is, on foreign law whose application serves an American vision of what is just.

The European Convention: Bargaining in the Shadow of Rhetoric

The European Convention on the Future of Europe was initially presented as a turning point in the history of European integration. This article argues that, although its composition was broader, its process more transparent and its rules more flexible than classic intergovernmental conferences, the Convention was not Europe's Philadelphia. Since it took place under the shadow of the IGC and under a leadership especially sensitive to the positions of big member states, the Convention reproduced, by extension, the logic of intergovernmental bargains. Nevertheless, some of the Convention's outcome – the most formal aspects of its draft treaty with less predictable distributional consequences – can be explained by the ‘social norm’ of constitutional deliberation conveyed by its president and supported by a majority of its members.

EDITORIAL: CONSTITUTIONAL DELIBERATIONS OVER EUROPE

EDITORIAL: CONSTITUTIONAL DELIBERATIONS OVER EUROPE

Constitutional Economics--Constitutional Politics

Why does the treatment of American constitutional politics presented in We the People depart so radically from models of constitutional deliberation developed in the type of constitutional economics pioneered by James Buchanan and Gordon Tullock? The paper defines three premises that account for the divergence, and concludes by proposing an inquiry into constitutional design that requires insights from both traditions.

A forum of constitutional deliberation? A critical analysis of the joint constitutional commission

The Joint Constitutional Commission of the Bundestag and the Bundesrat submitted the Basic Law to a wide‐ranging review, but its recommendations are characterised by minor adaptations and a lack of innovative and forward‐looking proposals. This outcome can be explained by reference to the institutional features of the Joint Commission and, in particular, the predominance of bargaining behaviour as opposed to rational arguing in the Commission's negotiations. Instead of providing for the open deliberation of constitutional issues, the Commission largely reproduced the established political framework, and, thus, encouraged bargaining processes amongst the political elite. Althoug alternative institutional structures cannot guarantee an improvement in the quality of constitutional policy, they can at least provide opportunities for more open and rational arguing to emerge.

The Business of May Next: James Madison and the Founding.

Good fortune offered this nation an unusual chance at ideal nation-forming and... some honorable leaders seized that chance, writes William Lee Miller in The Business of May Next, and none among the founders made more of the opportunity than did James Madison, subject of this engaging work. Madison is depicted during the critical years between 1784 and 1791, when he was so active in articulating the governmental aims of the fledgling nation that he sometimes found himself in official dialogue with himself. More than simply a historical and biographical account, the book traces Madison's political and theoretical development as a means of illuminating its larger theme, the moral and intellectual underpinnings of the American nation. With a sound grasp of his material and a refreshing style Miller reveals how Madison's research into republics and his influence on the writing of the Constitution are central to the values for which the nation stands. From an examination of Madison's notes, Miller traces Madison's early research into other republics and their weaknesses. He reveals how Madison's thinking shaped the Virginia Plan, which, in turn, shaped the United States Constitution and the nation's institutions. The author writes that Madison sought the strands of Republicanism in history and gave republican ideals new and lasting institutional expression. He shows how the making of republican institutions became a collaboration, and how the newly created institutions contained within themselves provision for their own continuing alteration and for the involvement and influence of collective humanity down through the years. Miller follows Madison through the Constitutional Convention(the business of May next) to the great national argument on behalf of the Constitution, notably through the Federalist papers. Of particular interest are his discussions of the constitutional deliberations over religious freedom and the institution of slavery.

Polity and Group Difference: A Critique of the Ideal of Universal Citizenship

An ideal of universal citizenship has driven the emancipatory momentum of modern political life. Ever since the bourgeoisie challenged aristocratic privileges by claiming equal political rights for citizens as such, women, workers, Jews, blacks, and others have pressed for inclusion in that citizenship status. Modern political theory asserted the equal moral worth of all persons, and social movements of the oppressed took this seriously as implying the inclusion of all persons in full citizenship status under the equal protection of the law. Citizenship for everyone, and everyone the same qua citizen. Modern political thought generally assumed that the universality of citizenship in the sense of citizenship for all implies a universality of citizenship in the sense that citizenship status transcends particularity and difference. Whatever the social or group differences among citizens, whatever their inequalities of wealth, status, and power in the everyday activities of civil society, citizenship gives everyone the same status as peers in the political public. With equality conceived as sameness, the ideal of universal citizenship carries at least two meanings in addition to the extension of citizenship to everyone: (a) universality defined as general in opposition to particular; what citizens have in common as opposed to how they differ, and (b) universality in the sense of laws and rules that say the same for all and apply to all in the same way; laws and rules that are blind to individual and group differences. During this angry, sometimes bloody, political struggle in the nineteenth and twentieth centuries, many among the excluded and disadvantaged thought that winning full citizenship status, that is, equal political and civil rights, would lead to their freedom and equality. Now in the late twentieth century, however, when citizenship rights have been formally extended to all groups in liberal capitalist societies, some groups still find themselves treated as second-class citizens. Social movements of oppressed and excluded groups have recently asked why extension of equal citizenship rights has not led to social justice and equality. Part of the answer is