“Our constitutional legal tradition [has] been reticent, if not unwilling, to grant the general populace a protagonist role in civic matters.” (p.5)
In Latin American Constitutionalism: 1810 – 2010, Roberto Gargarella introduced the concept of the “engine room” of the Constitution: i.e., that part of the Constitution that deals with the organisation of power. Taking the example of Latin American constitutional history, Gargarella argued that these Constitutions’ attempts at political and social transformation through expansive bills of rights and emancipatory rhetoric were often undermined because the “engine room” remained authoritarian and centralised. Bills of rights – Gargarella observed – would not accomplish much unless they were accompanied by genuine democratisation of power. Subsequently, in The Legal Foundations of Inequality, Gargarella specifically considered the relationship between the Constitution’s “engine room” – focusing on core constitutional institutions such as representative democracy, the separation of powers, and judicially enforceable bills of rights – and its engagement with political and social inequality.
The Law as a Conversation Among Equals – Gargarella’s latest book – continues this conversation. It is also, however, a more ambitious work, launching a thoroughgoing critique of many of the core concepts of contemporary constitutionalism, and arguing for a fundamental reorientation in how we understand Constitutions, their purpose, and the act of interpretation.
In The Law as a Conversation Among Equals, the main question Gargarella asks is: what is the relationship between constitutionalism and democracy? This requires, at the outset, a working definition of democracy. Gargarella provides a thick, substantive understanding, defining the concept of democracy as “one that puts special importance on requirements such as equality (equal status for every participant); making sure all groups affected by a decision have been heard; and a prolonged period for debate (which increases the need for information, transparency and public discussions where proposals can be mutually presented, challenged, and revised).” (pp. 13 – 14)
In this context, Gargarella’s core argument in the book is that ever since their birth in the United States in the late-18th century, right up until the present day, the constitutional institutions that we take for granted – such as representative democracy, periodic elections, the separation of powers and checks and balances, judicial review, and so on – have been collectively dedicated to creating, maintaining, and entrenching the “gap” between constitutionalism and democracy. This gap that has widened over the last two centuries, as societies have grown larger, more heterogenous, and more complex.
The first part of Gargarella’s argument is historical, and grounded within the history of the Americas, although parallels – I believe – exist everywhere. He considers the constitutional thought and writing of three figures – James Madison (US), Juan Batista Alberdi (Argentina), and Andres Bello (Venezuela/Chile), each of whom exercised a significant influence upon the process of constitutional founding in their respective countries, and whose ideas traveled far beyond their homelands. Each of these figures, Gargarella argues, was motivated by “democratic distrust”, i.e., a suspicion of the participation of the People in public affairs. This elitism, in turn, was baked into the institutions that undergirded those early Constitutions (and which continue to this day). In short:
The problem is the way we view the elitist discourse that ended up in our constitutions as somehow innocuous. More specifically, the problem is that elitist assumptions and principles, relics of the predominant public discourse among leaders more than two centuries ago, were entrenched, and still are, in our primary institutions. (p.41)
In a rich historical discussion, Gargarella traces this development through the framework of assumption – principle – institution. For example, the assumption that human nature is egotistical and self-interested (drawn from dominant theories of economic rationality at the time) was translated into the principle that “ambition must counteract ambition” in order for freedom to be secured, and that, in turn, was translated into the constitutional institution of separation of powers, where different bodies of government were designed so as to combat each other, rather than engage in dialogue; similarly, the foundation of the institution of judicial review lay in the assumption that a small body of technically-trained people were more likely to arrive at the truth than large deliberative assemblies. However, even if these assumptions are no longer uncontested, the institutional arrangements that they birthed continue to stay with us even today. As Gargarella notes:
The basic structure for the organization of power, above all, remains intact in our current constitutions. In this aspect, no meaningful changes have taken place. More specifically, there have been meaningful amendments to the two main parts of every constitution – the part regarding the organization of power and the part enumerating rights – but, since the beginning of the twentieth century, they have overwhelmingly concentrated, as we will see, on the part regarding rights. The declarations of rights have tended to expand, often much more than might have been expected (in many cases we have gone from a short list of “classic liberal rights” to ones that also include social, economic, cultural, and multicultural rights). Meanwhile, with regard to the organization of power, almost everything remains as it was: three primary branches of government that are separated by a system of checks and balances; a legislature comprised of a Senate that tends to be conservative and a lower house that tends to be relatively diverse; a judiciary that retains the “last word” on constitutional matters; an executive concentrated in a single, very powerful figure; and some form of federalism. (p. 46)
One of the most detailed discussions that Gargarella undertakes in this regard is that of the institutions of representative democracy. He notes that the assumption that large assemblies were prone to falling prey to passions, and oppressing the (at that time, propertied and wealthy) minority led the framers of the US Constitution to reject various forms of direct democracy, and support representative democracy not as a necessary evil that was required to administer large territories, but as the normatively better form of government. Not only this, the framers systematically worked towards eliminating external, popular controls over representatives (such as, for example, a right to instruct and a right to recall), in favour of internal controls (i.e., different branches of government checking and controlling each other):
The counter-majoritarian bias of Madison’s characterization, in my view, is wholly evident in this perspective of the representative system, a perspective that permeates the entire US Constitution. The Constitution was devised to limit citizen participation in politics, to “separate” citizens from their representatives, to prevent them from imposing their opinions on legislators, to make sure electors cannot force their representatives to favor the particular interests of their locality over the general interests of the nation, and so on. From this characterization and line of reasoning began counter-majoritarian constitutionalism. (p. 65)
As a result, various forms of popular engagement with law-making – including, for example, the town hall meeting – were eliminated:
In general terms, the constitutional model that – starting with the 1787 United States Constitution – began to spread to other countries until it became the prevailing model, places strong emphasis on “internal” over “external” controls; presents a certain bias against democratic participation; and contains many restrictions on the power of the majority. These traits developed, in a very special way, in dialogue with and in reaction against an original, alternative model, which seemed to insist on values in tension with those that became dominant (constitutions that placed great importance on majority rule, democratic participation, and “popular” controls) (p. 107).
And, in turn, the sole method of popular control over lawmakers was the periodic election – and this, in turn, placed a burden of expectation upon the vote that – according to Gargarella – it simply could not fulfil.
Through this analysis, we can therefore see how a range of constitutional institutions that we take for granted today – i.e., representative legislatures, periodic elections, internal checks and balances, and so on – were designed with the specific purpose of denying – in Gargarella’s words – “the general populace a protagonist role in civic matters.”
Gargarella thus argues that the exclusion of the People is baked into the design of modern constitutionalism, a design that is at odds with his own vision of substantive democracy, and the role that law must play in facilitating “a conversation between equals.” However, what would a constitutionalism founded upon a “conversation between equals” look like? In the second half of the book, Gargarella develops this in some detail. The “idea of a conversation between equals” is quite close to various versions of dialogic democracy, which envisage a process of collective decision-making through a structured dialogue between parties in positions of equality. For Gargarella, this involves reconsidering several core elements of constitutionalism. Consider, for example, judicial review. In a previous chapter, Gargarella critiques the Marbury v Madison version of judicial review as born from an assumption that the best way of protecting rights is by giving groups of technically-trained judges the “final word” over constitutional interpretation. Under the “conversation among equals” model, however, this is no longer quite so obvious. Instead, borrowing from – and deepening – John Hart Ely’s idea of the court playing a “representation-reinforcing” role, Gargarella argues that the purpose of judicial review should be to deepen democracy:
In my view, and guided by a deliberative conception of democracy, judges should set aside cases that they deal with today, and at the same time, begin paying attention to other cases, which today they tend to set aside. Thus, and for example, they should start examining with strict scrutiny (I mean, with a high presumption of invalidity) those laws passed in Congress with the necessary majorities, but without public debate, or unsupported by public. reasons, or just expressing the demands of interest groups. (pp. 228 – 229)
My own approach would rather be oriented to the democratic reconstruction of an already seriously undermined scheme of controls. This would require judges, for instance, to work with a presumption contrary to the concentration of powers. Second, while Ely’s scheme aims to “keep open the channels of political change,” the one I suggest would be oriented (for said reasons) to promote the democratic debate. Third, while Ely’s scheme requires judges to provide special protection to discrete and insular minorities, my proposal would (also) urge a similar concern for the fate of impoverished majorities. In this sense, and in order to honor the values of public debate, judges could make a special contribution to public debate by providing special protection to the voices of socially marginalized groups (i.e., in cases related to social protest). (pp. 230 – 231)
Gargarella sees seeds of this approach towards constitutionalism already present in certain jurisdictions: in the Canadian Charter’s “notwithstanding” clause, for example, and in the South African Constitutional Court’s famous Grootboom decision (although Gargarella concedes that both these examples have flattered to deceive). And he finds particular succour in various citizens’ assemblies and deliberative initiatives that have sprung up in recent years, from public debates over abortion in Argentina, to the same-sex marriage referendum in Ireland, to the popular constitution-making process in Iceland. This book was written before recent developments in Chile, otherwise – no doubt – that too would have featured prominently.
The Law as a Conversation Among Equals combines a nuanced critique of constitutionalism’s “story so far”, and a powerful blueprint for a journey forward. It is also part of an ongoing conversation that acknowledges the historical exclusion of “the People” from constitutionalism, and attempts to bring them back in, in a manner that promotes the idea of a “conversation among equals” (and not simply top-down, superficial popular involvement such as formal referenda). For example, I have no doubt that Gargarella would be fascinated by the combination of direct and representative democracy that is deployed under the Kenyan Constitution’s “popular initiative” process for constitutional amendment (Article 257), and the interpretation of that provision in the famous “BBI Cases” that have previously been discussed on this blog.
One of the most urgent questions facing contemporary constitutionalism is, indeed, about how to alter and transform constitutional institutions that have, thus far, been designed to exclude the People – but how to do it in a way that does not replace one system of domination with that of another. The Law as a Conversation Between Equals is a valuable contribution to that ongoing, global conversation.