III. Democratic Deliberation & Citizens of Social Groups...24 A. Problematic Deliberation among Citizens of Strangers 24
B. Deliberations among Citizens of Social Groups 26
1. Public Sphere with Citizens of Social Groups ...26 2. Concept of Social Groups: Thick or Thin? Static or Fluid? ...28 3. Voluntary Nature of Social Groups & Civic Organizations ...30 C. Defense against Critics31
D. Constitutional Deliberation v. Policy Deliberation 33
IV. Conclusion ...34
I. Forward
Most constitutions were deliberated and enacted by representative assemblies.
Some recent ones were deliberated in representative assemblies but enacted with public votes.30 Very few constitutions, if any, were deliberated popularly before enactment. This is perhaps for two reasons: practical and normative. Practically, it is nearly impossible for such a large group to deliberative on anything, least an abstract and fundamental document called a constitution. Normatively, a constitution rarely demands such a popular deliberative act for its validity and legitimacy. Against such common understandings, however, a recent discourse has risen to emphasize the relationship between a constitution and popular deliberation.
Assistant Professor, College of Law, National Taiwan University; JSD, Yale Law School
30 Vivien Hart, Democratic Constitution Making, Special Report 107, United States Institute of Peace (2003), available at http://www. usip.org/(accessed January 14, 2005)
On a theoretical front, scholars of deliberative democracy have been outspoken in criticizing the problematic concept of aggregative democracy and proclaiming the fundamental legitimacy of democratic deliberation.31 As fundamental as
constitutional governance, it must not be established upon force or disingenuous consent but instead upon a rational, reciprocal deliberation process by which all agree.32 In this way, the thesis of deliberative democracy is more than the theory of legitimacy, and deliberative democrats have begun to engage in intensive dialogues with theory of justice, communitarianism, popular sovereignty, rule of law, or even new institutional economics.33
Similarly in practice, various forms of deliberation, in particular public deliberation, have been installed in recent exercises of constitution making or
constitutional reforms. For instance, the role of constitutional convention was stressed in the constitution making of European Union. Public consultations were utilized successfully in South Africa’s 1997 Constitution.34 Carefully designed citizen deliberative polling® was tried several times in Australia on amending proposals of constitution acts.35 Mostly radically, a citizen assembly was formed in British Columbia of Canada to take up deliberative role and make constitutional amendment proposals that were traditionally at the hand of a parliament.36 As it seems, a
so-called “deliberative turn”in modern democracy and constitutionalism has taken hold.37
31 See e.g. AMYGUTMANN& DENNISTHOMPSON, WHYDELIBERATIVEDEMOCRACY? (2004).
32 See e.g. Jon Elster, Deliberation and Constitution Making, in DELIBERATIVEDEMOCRACY 97-122 (1998); Anne van Aaken, Deliberative Institutional Economics, or Does Homo Oeconomicus Argue? A Proposal for Combining New Institutional Economics with Discourse Theory, in
DELIBERATION ANDDECISION: ECONOMICS, CONSTITUTIONALTHEORY ANDDELIBERATIVE DEMOCRACY(Anne van Aaken et al eds., 2004).
33 See generally SEYLABENHABIB, DEMOCRACY ANDDIFFERENCE: CONTESTING THE
BOUNDARIES OF THEPOLITICAL(1996); James Bohman & William Rehg, DELIBERATIVEDEMOCRACY: ESSAYS ONREASON ANDPOLITICS(1997); Jon Elster ed., DELIBERATIVEDEMOCRACY(1998); Anne van Aaken et al eds., DELIBERATION ANDDECISION: ECONOMICS, CONSTITUTIONALTHEORY AND DELIBERATIONDEMOCRACY3-32 (2004).
34 Christina Murray, A ConstitutionalBeginning:Making South Africa’sFinalConstitution,23 UNI. ARKANSASLITTLEROCKL. REV.809 (2001).
35 James Fishkin, Deliberative polling®: toward a better informed democracy, at http://cdd.stanford.edu/polls/docs/summary/#results
36 http://www.citizensassembly.bc.ca/public
37 The term of “deliberative turn”appeared in JOHNS. DRYZEK, DELIBERATIVEDEMOCRACY AND BEYOND: LIBERALS, CRITICS, CONTESTATIONS(2000).
Despite earned acceptance, deliberative democrats still confront serious challenges. Practically, the extent to which citizens were engaged in deliberative process was put into question. The use of public consultation in both South Africa and European Union was seen as rather ceremonial. Many young people showed
ignorance about what was going on and the less educated expressed frustrations.38 In cases where deliberative process was carefully designed to ensure the quality of pubic engagement, they would have to limited to only certain number of citizens. The help from the media or internet in enlarging or disseminating deliberative discourse was rather trivial.39 The ideal of deliberation day40 –albeit with the potential in resolving aforementioned technical constraint–remains as utopia. The greatest practical
challenge above all is the effectiveness of democratic deliberation regarding its
end-result. The questions of effectiveness include whether democratic deliberation has any impacts on its final product –a constitution–and whether a constitution whose birth is through democratic deliberation is more effective in its abidance and successful in its governance.41
Theoretical challenges to deliberative democrats are multifold. First, they are criticized as misunderstanding law and politics. Opponents maintain that it is political authority capable of making a founding decision stands at the core of establishing constitutions.42 Political masses, popular mobilization and in some cases passion were what historically created –even legitimized–any existing polity.43 Secondly, the thesis of deliberative democracy frustrates the division of labor between political institutions –based upon reasons and representatives–and political will –based upon powers and the people–. Third, by merely highlighting citizens in discursive process, deliberative thesis underestimates the role of social groups and labor unions in a plural polity with socio-economic complex.44 Last and perhaps strongest is the
38 For the discussion of South Africa, see Christina Murray, supra note. For the critics of European Constitution making process, see Neil Walker, Europe’s constitutional momentum and the search for political legitimacy, 3 I-CON INT’LJ. CON. L. 211 (2005).
39 Almost everywhere, citizen conferences were only covered by local public televisions and their own established websites whose watching and reading audience was very limited.
40 BRUCEACKERMAN& JAMESFISHKIN, DELIBERATIONDAY(2004).
41 Stefan Voigt, The Consequences of Popular Participation in Constitutional Choice –Towards a Comparative Analysis, in DELIBERATION ANDDECISION: ECONOMICS, CONSTITUTIONALTHEORY AND DELIBERATIVEDEMOCRACY199- 229 (Anne van Aaken et al eds., 2004).
42 CARLSCHMITT, GEORGESCHWAB TRANS., POLITICALTHEOLOGY: FOURCHAPTERS OF THE CONCEPT OFSOVEREIGNTY(1985, 2005).
43 Id. at 30-31.
44 See e.g. IRISM. YOUNG, INCLUSION ANDDEMOCRACY(2000).
criticism that citizen deliberation –no matter how carefully designed its process–may never deliver what it promises but merely polarizes those with opposing views45 and even discourages them from participating in politics.46
With mounting pressure, deliberative democrats must find new ways to defend their thesis and rejuvenate their position. Some revisions are necessary. This essay does not –certainly cannot–tackle all above challenges. Rather, given the sustained belief in deliberative democracy, it attempts at reconstructing the ways that citizens are to be understood in constitutional deliberations. The pre-existing links between citizens and their political/social/economic/cultural/ethnical identities must be
formally recognized and reckoned with in deliberative process. In other words, citizen deliberation on constitutions should be understood as citizens of various
political/social/economic/cultural/ethnic groups (hereinafter “
social group”) coming and deliberating together in a reciprocal fashion on fundamental constitutional choices. In so doing, neither rationality nor impartiality sought by deliberative democracy would be jeopardized. To the contrary, deliberative process based upon social groups would benefit greatly from the strength and energy of citizens in their respective social groups –rather than overburden each and every isolated citizen at his or her own home. It would also ensure the extent of social mobilization that isnecessary to motivate concerned citizens and enlarge public discussion.
In the following essay, I shall first explain why it is better to have citizens of various social groups –instead of isolated citizens–in public deliberation of constitutions. Then I shall argue its institutional advantages and defend potential disadvantages and challenges from classical views of citizen deliberation. Last, I shall hope to advocate a pluralist constitutional regime that is implied in my design and is inevitable in the age of transnational constitutionalism.47
45 Cass Sunstein, Group Judgments: A Statistical Means, Deliberation and Information Market, 80 N. Y. U. L. REV. 962 (2005); Cass Sunstein, Deliberating Trouble? Why Groups Go to Extremes, 110 YALEL, J. 71 (2000).
46 DIANAC. MUTZ, HEARING THEOTHERSIDE: DELIBERATIVE VERSUSPARTICIPATORY DEMOCRACy (2006).
47 Jiunn-rong Yeh & Wen-Chen Chang, From Origin to Delta: Changing Landscape of Modern Constitutionalism, paper draft available athttp://law.bepress.com/expresso/eps/1815.
II. Nature & Paradox of Deliberative Democracy
A. Deliberative Democracy v. Representative Democracy
The idea of deliberative democracy affirms the need to justify decisions in any polity.48 Counting heads or aggregative voting is not considered as a valid or legitimate way of making decisions. Reasons accessible to all must be given in
mutually respectful fashion. In this sense, deliberative democracy does not necessarily require any public, popular or citizen deliberation. So long as a deliberative process is undertaken, it is not a concern whether a decision is made by representatives or more popularly by the people. As Gutmann & Thompson make it clear,
“what makes deliberative democracy democratic is an expansive definition of who is included in the process of deliberation–an inclusive answer to the questions of who has the right (and effective opportunity) to deliberate or choose the deliberators, and to whom do the deliberators owe their justifications.”49
Hence, deliberative democracy is not necessarily popular or direct democracy. In focusing on reasoned decisions, however, a potential link exists between deliberative democracy and popular democracy. For, it remains considerably paranoid for
deliberative democrats that representatives, therefore the deliberators, are chosen by mere preferences or even powers while their decisions must justified by reasons. After all, representatives obtain mandates to make decisions for all. The indirect link
between the people and decisions made by representatives suffices neither that the people cannot be deliberators nor that decisions made by representatives need not be justified to the people.
In order to ease this tension, two kinds of solution are offered by deliberative democrats. One way is to add deliberative elements in election process by which the people choose their representatives –future deliberators. For instance, a deliberative polling® was held with the aide of the Center for Deliberative Democracy directed by James Fishkin before a British general election.50 In Taiwan, an experimental citizen deliberative conference was conducted before the city and county mayor election in 2005.51 Ackerman & Fishkin advocate for a national day of deliberation before
48 Amy Gutmann & Dennis Thompson, supra note, at 3.
49 Id. at 9-10.
50 James Fishkin, supra note.
51 The introduction and analysis of the event is provided by Taiwan Think Tank, available at http://www.taiwanthinktank.org/ttt/servlet/OpenBlock?Template=Article&lan=tc&category_id=55&art icle_id=519(visited April 1, 2007).
people go to the poll for next elections of Congress and President.52 The other way is to have citizen deliberations on major policies as supplements for representative deliberative decision making. Public consultation, citizen conferences, citizen juries or deliberative polling® exemplifies some of ways in which the rational and
legitimate deficit of representative democracy may be rescued by extended
deliberations into those who are ultimately bound by public decision making. In this way, deliberative democracy works like participatory democracy –despite the difference being that the latter emphasizes participatory power from the people while the former focuses on supplementary reasons offered by citizens.
In what other more direct ways, then, would deliberative democracy find its popular element? Or whether deliberative democracy has any popular root?