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DELIBERATIVE DEMOCRACY AND CONSTITUTIONS

Published online by Cambridge University Press:  30 November 2010

James S. Fishkin
James S. Fishkin
Affiliation:
Communication and Political Science, Stanford University
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Abstract

This paper examines the potential role of deliberative democracy in constitutional processes of higher law-making, either for the founding of constitutions or for constitutional change. It defines deliberative democracy as the combination of political equality and deliberation and situates this form of democracy in contrast to a range of alternatives. It then considers two contrasting processes—elite deliberation and plebiscitary mass democracy (embodied in referenda) as approaches to higher law-making that employ deliberation without political equality or political equality without deliberation. It finally turns to some institutional designs that might achieve both fundamental values at the same time, or in the process of realizing a sequence of choices.

Type
Research Article
Information
Social Philosophy and Policy , Volume 28 , Issue 1 , January 2011 , pp. 242 - 260
Copyright
Copyright © Social Philosophy and Policy Foundation 2011

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References

1 See “Rhode Island's Assembly Refuses to Call a Convention and Submits the Constitution Directly to the People,” and “The Freemen of Providence Submit Eight Reasons for Calling a Convention,” in Bailyn, Bernard, ed., The Debate on the Constitution, Part II (New York: The Library of America, 1993), esp. 277Google Scholar.

2 I develop this discussion of competing democratic theories in Fishkin, James S., When the People Speak: Deliberative Democracy and Public Consultation (Oxford: Oxford University Press, 2009)Google Scholar.

3 For more on non-tyranny as a principle of democratic theory, see Fishkin, James S., Tyranny and Legitimacy: A Critique of Political Theories (Baltimore, MD: Johns Hopkins University Press, 1979)Google Scholar.

4 See Fishkin, When the People Speak, “Appendix: Why We Only Need Four Democratic Theories.”

5 Schumpeter, Joseph A., Capitalism, Socialism, and Democracy (New York: Harper and Row, 1942)Google Scholar; Posner, Richard A., Law, Pragmatism, and Democracy (Cambridge, MA: Harvard University Press, 2003)Google Scholar.

6 See, for example, Posner, Law, Pragmatism, and Democracy, 172–73.

7 Madison, James, Federalist No. 10, in The Federalist Papers, ed. Rossiter, Clinton (New York: New American Library, 1961)Google Scholar.

8 Mill, John Stuart, Considerations on Representative Government (New York: Prometheus Books, 1991; originally published 1862), 116Google Scholar; Habermas, Jürgen, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: MIT Press, 1996), chap. 7Google Scholar.

9 See James Madison, Federalist No. 63: If the Athenians had only had a Senate, “[p]opular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.”

10 An argument made notably by Pateman, Carole, Participation and Democratic Theory (Cambridge: Cambridge University Press, 1976)Google Scholar.

11 For an overview, see Magleby, David, Direct Legislation: Voting on Ballot Propositions (Baltimore, MD: Johns Hopkins University Press, 1984)Google Scholar. For the relative ineffectiveness of voter handbooks and other efforts to get voters more informed, see ibid., 137–39.

12 For a good overview of these ancient institutions, see Hansen, Mogens Herman, The Athenian Democracy in the Age of Demosthenes (Oxford: Blackwell, 1991)Google Scholar.

13 See Fishkin, When the People Speak, for an overview of this research program.

14 Ackerman, Bruce and Fishkin, James S., Deliberation Day (New Haven, CT, and London: Yale University Press, 2004)Google Scholar.

15 I take the term from Manin, Bernard, Principles of Representative Government (Cambridge: Cambridge University Press, 1997), chap. 6CrossRefGoogle Scholar.

16 Lipsey, R. G. and Lancaster, Kelvin, “The General Theory of Second Best,” The Review of Economic Studies 24, no. 1 (1956–57): 11–32CrossRefGoogle Scholar.

17 If a Paretian, ordinalistic framework is applied, then at least there is no clearly better (or Pareto-superior) alternative.

18 These criteria are discussed in greater detail in Fishkin, When the People Speak, 33–42.

19 The polarization argument has been made most notably by Cass R. Sunstein. See, for example, Sunstein, , “The Law of Group Polarization,” in Fishkin, James S. and Laslett, Peter, eds., Debating Deliberative Democracy (Oxford: Blackwell, 2003), 80–101CrossRefGoogle Scholar. For an overview of results, see Fishkin, When the People Speak, chap. 4.

20 Levinson, Sanford, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) (New York: Oxford University Press, 2006)Google Scholar. For the “iron cage” posed by the amendment process, see pp. 20–24. For the constructive proposals, see pp. 178–80.

21 See Fishkin, James S., Luskin, Robert C., Panaretos, John, Siu, Alice, and Xekalaki, Evdokia, “Returning Deliberative Democracy to Athens: Deliberative Polling for Candidate Selection,” paper presented at the American Political Science Association, Boston, September 2008, available at http://cdd.stanford.edu/research/papers/2008/candidate-selection.pdfGoogle Scholar.

22 See Hansen, The Athenian Democracy, 167–69.

23 In this case, a stratified random sample of 23,034 was invited via letter to participate. Of these, 1,715 responded saying they were interested. After some demographic criteria were applied, 1,441 of these were invited to come to “selection meetings,” and 964 did so. Of the 964, a total of 158 were selected randomly. The issue is that we do not have any way of evaluating how the 1,715 who selected themselves compared to the initial pool of 23,034. How much more interested or knowledgeable about politics and public affairs were they? How much more skewed to one political viewpoint or another? Similarly, we do not know anything about how the representativeness of the microcosm was affected by the other stages of selection. It is a demanding task to volunteer to give up nearly a year of one's life. How did those who put themselves forward for this opportunity compare to those who did not, or, in other words, how did they compare to the rest of the population for whom they were supposed to be a random microcosm? See Technical Report, pp. 35ff., available at http://www.citizensassembly.bc.ca/resources/TechReport(full).pdf. The response rate as a proportion of the original 23,034 is miniscule, and the data for comparing participants and nonparticipants is not collected in this design. The DP design avoids both problems. See Fishkin, When the People Speak.

24 See Ackerman and Fishkin, Deliberation Day.

25 See Ackerman, Bruce A., We the People, vols. I and II (Cambridge, MA: Harvard University Press, 1991 and 1998)Google Scholar.

26 See, for example, Broder, David, Democracy Derailed: Initiative Campaigns and the Power of Money (New York: Harcourt, 2000)Google Scholar.

27 Article V of the U.S. Constitution provides that “Congress … on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments… .”

28 See note 25 above.