The basic structure doctrine permits unelected judges to impose near-permanent checks upon parliament’s power to amend the Constitution. Recall that we have proposed two philosophical defences that render this doctrine compatible with democracy as we understand it. The first – and let us call this the substantive defense – posits an expanded idea of democracy, one that guarantees equal concern and respect to all members of a polity, and that therefore accords legitimacy to majoritarian decision-making procedures only insofar as these procedures respect certain basic individual rights without which equal concern and respect cannot genuinely be said to exist. The second – and let us call this the procedural defense – distinguishes between different levels of lawmaking, and accord degrees of legitimacy to these levels depending upon the scope, depth and duration of popular public engagement (e.g., very simply, a constitutional amendment is a higher form of lawmaking than normal legislation). This theory then argues that lawmaking at higher levels can only be changed or amended by another process that occurs at that level – i.e., through at least the same degree of public participation. The procedural theory concludes by arguing that the basic principles of the Constitution, coming as they did upon a long, sustained and highly popular independence movement, are entrenched from change until a similar movement comes along again.
I will suggest that while both these defenses capture certain valuable insights about what it is that we find attractive about the basic structure (at least those of us who support it), they are also fundamentally inadequate qua defenses, because each ignores or excludes the insights of the other. I will then propose an argument that will attempt to incorporate the better parts of each.
The substantive approach captures the idea that there is nothing inherently valuable about a majoritarian decision-making process. As Berlin observed long ago, it doesn’t really matter to me if my house is confiscated by a majority or by a despot. No, the reason why we value majoritarian procedures must be because they often give us the right answer. But in that case, the rightness of the answer must be independent of the process used to arrive at it – that is, the value of the process is instrumental, not substantive. And then, logically, what we need to do is to figure out what the right answer or answers are, and allow the majoritarian process free play only within the bounds of the answers. The substantive view of democracy locates the rights answers in certain core, individual rights, and ensures their protection against the popular process.
The problem, however, with the substantive vision of democracy is that it gives us very little to go by in the way of what individual rights ought to be protected. Indeed, it seem to come down, in the end, to simply intuition: we intuit that free speech, freedom of conscience, equality and so on – are vitally important rights that must be protected. But history teaches us that other men and women in times past have held very different views, and so, quite certainly, will other men and women in times to come (the manner in which the right to property went from being a fundamental right to a mere statutory right is a stark example of how the place of rights in our constitutional culture can radically transform itself within a couple of generations). Leaving these rights to be determined by a few judges, themselves often drawn from the elite and therefore inclined to share in its prejudices and blind spots, seems to be especially intolerable.
On the other hands, the procedural defense confirms another of our deeply-held convictions: that there is a value to the popular decision-making process, that there is some fundamental difference between an elected legislature guaranteeing the freedom of speech, and a despot making the same guarantee. That value is not hard to find: it is the value of self-government, the idea that I am bound by a law even though I disagree with it, because it is, in some sense, my law. But if that is the case, then the procedural defense needs to explain how the process serves that value, and why a process that regularly and repeatedly leads to deeply unjust results (especially as far as dissidents and minorities are concerned), deserves some kind of inherent legitimacy. The higher-lawmaking ideal, that simply deepens and extends the process, will not solve our problem, because our problem isn’t one of degree, but of structure: we do think that outcomes matter, no matter who reaches them and how they are reached.
In other words, process matters and outcomes matter. This, then, is our challenge: we must avoid the twin perils of imposing-intuited-rights-from-on-high and unconstrained majoritarianism (and that includes supermajoritarianism), and the only way to do this is to provide a value-laden account of the majoritarian process that could well modify or change it in important ways, but must keep its essence intact. I suggest that one way of meeting the challenge is by invoking the idea of deliberative/dialogic democracy.
Deliberative democracy has a rich intellectual tradition; the ideas of the great German philosopher, Jurgen Habermas, provide its fount, and lately, it has been developed in many interesting directions by theorists such as Seyla Benhabib, James Fishkin, Joshua Cohen, and so on. It is not, obviously, my intention here to provide a full-scale analysis of the divergent traditions of deliberative democracy. I can only provide a highly impressionistic account, moulded as I understand it to apply to the basic structure doctrine, that may or may not be consistent with any one school of thought. Interested readers may follow up by browsing the works of these scholars, all of whom repay close study.
As the name suggests, deliberative democracy finds the value of the democratic process in the idea of deliberation – that is, a structured arena (call this the “public sphere”) in which people come together, communicate, deliberate or discuss matters important to them, and come to decisions. The key insight that deliberative democracy seeks to capture is that we do not come into this world as atomized individuals with a set of pre-set preferences and identified interests, but rather, these preferences and interests are shaped and formed through our communications with each other. And at the end of an open and fair deliberative process, in which participants have been placed on an equal footing, and been provided equal opportunities to contribute to both individual and group preferences-formation, the collective decision that is reached is, in a sense, by virtue of the fairness of the process that led to it, our decision. In this way, deliberative democracy aims to conform to the ultimate ideal of self-government, and justify to us why laws arrived at through a certain procedure enjoy an inherent – at least prima facie – legitimacy.
Intuitively, this makes sense. But what this also means is that the deliberative procedure must be subjected to certain constraints if it is to fulfill its own goals. To take the simplest example: a deliberative procedure in which half the people are not allowed to speak is self-contradictory: any preferences or interests formed as a result of this process, and any decisions arrived at, are illegitimate because not only did one half of the population have no opportunity to communicate their points of view to others, but the process, as a whole, is incomplete, and any preference or interest-formation is partial at best. And thus we see how we derive a strong right of free expression from the logic of deliberative democracy.
Now what other constraints are placed upon the deliberative process is a matter for debate – for instance, it could be argued that religious neutrality is essential, because religions with their claim to revealed truth are fundamentally anti-deliberative. But the details of the theory may be fleshed out later. What I want to suggest here is the following: the basic structure doctrine is legitimate because it forms the essential structural framework within which the democratic process attains inherent value. A quick look at some of the basic features reveals that they are, for the most part – at least plausibly – connected with this goal: democracy, republicanism, free speech, secularism (see above) equality (a deliberative process, naturally, cannot be legitimate if some of its participants are treated as less worthy than others, and therefore, their contributions given less weight), and judicial review (umpiring the process). I admit that federalism has no place in this scheme, and insofar as the Court has upheld federalism to be part of the basic structure, that is a mistake.
How does deliberative democracy solve the problems with the two approaches we discussed above? First, the values that it protects are not some set of individual rights arrived at through introspection and intuition, but part of the logic of representative democracy itself, the system of government by which we all claim to live. But at the same time, it does explicitly identify values, and seeks to protect them. In this way, deliberative democracy captures the importance of both process and outcome by constraining and structuring the process in such a way that the outcomes can be traced back to certain important values, and thus enjoy presumptive legitimacy.
To the objection that the value I place upon deliberation is itself simply intuited, I plead guilty – there is no Archimedean point outside the circle, but I can only re-emphasize that the project we are engaged in is to locate the value that we think exists in our accepted system of government, that is, representative democracy based on the idea of majoritarian (or super-majoritarian) decision making processes. Deliberative democracy helps us to do that.
Lastly, what are the prescriptive implications of this theory? Simply this: that the Courts should keep in mind, when adjudicating upon a basic structure claim, that their role is to act as umpires of the continuing legitimacy of the democratic process, to enforce the structural conditions within which democracy is meaningful, and has value. The determination of these structural conditions themselves is a task for the individual judge, although some of the ideas listed here – and in the literature – can serve as good signposts. Beyond that, we can do no more than to trust to the good sense and intellectual humility of our judiciary, and at least as far as the basic structure doctrine goes, based on the evidence I highlighted in the previous posts, I would suggest that our trust has not yet been betrayed.