—Julian Gaviria-Mira, Universidad EAFIT, Colombia
In Democracy without Shortcuts, the philosopher Cristina Lafont has elaborated a compelling defense of what she calls a “deliberative-participatory democracy”. This democracy “without shortcuts” seeks to vindicate, at the same time, both deliberation in democratic institutions and strong participation of the citizens in collective self-government. Curiously, the effort to delineate this form of government -at once deliberative and participatory- ends with a defense of judicial review. I say “curiously” because it is not by no means natural that a conception of democracy that includes the adjective “participatory” decides to close its argument with a justification of the power of judges to invalidate the decisions of popularly elected majorities.
The question is a justified one and the author offers us an answer in the same text I am commenting on. It is basically related to the character that Lafont gives to the constitutional review. Following Rawlsian lines, Lafont links judicial review with the exercise of public reason. Judges, in exercising the powers assigned to them, would not only defend the superiority of the constitution and fundamental rights, but would also be exercising public reason and only public reason. That is to say, their decisions would be based only on shared principles, and the justification offered by the courts would be supported only by arguments and reasons that can be commonly shared.
But, even if the decisions of these judges are based on public reason, this does not necessarily separate Lafont’s approach from the technocratic ideals that she herself claims to reject. An elitist interpretation of this Rawlsian idea is clearly possible. Judges could be regarded as expert moral reasoners and their institutional position would be justified by their special knowledge and training in reasoning within the limits of public reason. This would be the translation that an author such as Robert Alexy, an important defender of constitutionalism, would make of this Rawlsian argument.
How, then, could judicial review be linked to the participatory element of this democracy “without shortcuts”? The answer comes from the “popular” turn proposed by Lafont. Judicial review represents, according to the author, an instrument for the institutionalization of the citizens’ right “to effectively contest the political decisions to which they [the citizens] are subject” (Lafont, 2020). Through judicial review a fraction of the people can, no matter how large their number, how weak their position in society or how strange their beliefs may be to the majorities, challenge parliamentary decisions. It can challenge such decisions by showing its fellow citizens precisely where the injustice of a particular measure lies, though it can do so only in the language of public reason. In turn, judges will give or deny them the reason only on the basis of arguments that can, at least in principle, be shared by all. In constitutional litigation the various parties and judges publicly declare their support for shared principles.
Deliberation and participation on constitutional issues is seen here as a long-term process in which courts, while seen as the “highest authority” in determining the content of rights, are not seen as the “final authority”. Their role, while vital, is not exclusive and perhaps not even the most relevant. The shaping of popular will can thus be understood as a tiered process, divided into different phases, in which different actors intervene and in which the people have, finally, the last word.
We can see then that Lafont’s argument rests on two pillars. On the one hand, she claims that judicial review makes it possible to articulate -under the language of public reason- the grievances of those who lose out in the representative process (on this aspect I will say nothing here). On the other hand, Lafont differentiates between “last word” and “final authority” and derives important consequences from there. I will focus my attention on this second pillar. It is possible to identify there two problems that I will use as a guiding line for the remainder of this entry.
The first is directly linked to this superior, though not ultimate, character of judicial review. Let us recall that this condition is basic to the line of argument put forward by Lafont. It is the possibility of a continuous participation of the citizens (a participation that indeed does have the character of ultimate) that makes it possible to preserve the participatory element of judicial review. But, to be able to affirm that judges do not have this ultimate authority (reserved to the people) we would have to be able to say, as Lafont says, that constitutional judges “have no authority to either amend or prevent the amendment of the constitution” (Lafont, 2020).
Well, this statement is, to say the least, problematic. Let us think for a moment about what this citizens’ response through reform implies. Constitutional reform can become (as in the case of the United States) an extremely difficult option for response. Entrenched constitutions make judges’ decisions almost uncontestable. While it remains theoretically possible to amend the constitution (and this would imply, as Lafont rightly says, that citizens would not see themselves as blind followers of judges’ decisions), the fact that this is not a real possibility in many cases greatly weakens the scope of Lafont’s argument.
In addition to this, constitutional reform can be a poor response when seeking to challenge a judicial decision. These decisions are interpretations of constitutional rights, rights whose existence (in many cases) none of the parties to the litigation denies. Constitutional reform, assuming this is a viable option, may be an appropriate avenue in some cases (as in Lafont’s proposed example of same-sex marriage), but it may be difficult in others. It could imply specifying constitutional rights to the extreme (losing that general character that serves as a framework delineating the space of public reason).
Lafont’s argument is further weakened if we consider a second issue. Not only may citizen response through reform be extremely difficult or inconvenient, but it may also be the case (and it is) that this is a possibility that the judges themselves have excluded from the options open to the citizenry. As the extensive debate about the limits to constitutional reform shows, it is not at all clear that constitutional judges lack the authority to prevent constitutional reform. The doctrine on the substitution of the constitution developed and applied by the Colombian Constitutional Court is a good example that, at least in some countries, this condition does not seem to be fulfilled.
The idea that there are limits to reform, limits that are, moreover, substantive, carries the implicit idea that there is a set of supra-constitutional principles that determine what has to be or what cannot be in the constitution (Benítez, 2014). The existence of these supra-constitutional principles is accompanied by the authority of judges to enforce the requirements that would derive from them. A judicial review thought of in this way is, in effect, a justice that is not only the highest authority, but the ultimate authority.
What has been said in this entry suggests that the approach proposed by Lafont has serious difficulties. These difficulties do not diminish, however, the enormous contribution that Democracy without Shortcuts makes to the debate about the legitimacy of judicial review. This argument is illuminating in several ways. First, it makes clear that the debate about the democratic legitimacy of constitutional review is not exhausted. This new attempt to make democracy compatible with constitutional supremacy shows the need to seek new, non-elitist approaches to the analysis of this important institution. Secondly, the argument developed by Lafont shows the difficulties of accommodating the theory of limits to constitutional reform within a non-elitist political theory. Finally (and derived from the latter), the deliberative and participatory defense of the legitimacy of constitutional justice opens a new light to the defense of constitutional review but, perhaps as important as this, it shows the need to critically analyze the role of judges, the way in which they themselves conceive this role and, in particular, the enormous democratic risks of their intervention when limiting the response of the citizens through constitutional reform.
Suggested citation: Julian Gaviria-Mira, Shortcuts and Short Circuits in Latin American Constitutional Models: a Reading of Cristina Lafont’s Democracy without Shortcuts, Blog, Sept. 30, 2021, at: http://www.iconnectblog.com/2021/09/shortcuts-and-short-circuits-in-latin-american-constitutional-models-a-reading-of-cristina-lafonts-democracy-without-shortcuts/