Deliberation and Constitution Making

Abstract

Constituent assemblies may involve deliberative democracy in two ways. On the one hand, deliberation among democratically elected delegates may be part of the process of adopting the constitution. On the other hand, promoting deliberative democracy may be one of the goals of the framers. In this essay I consider only the first aspect. I shall proceed as follows. In Section 1, I present some stylized facts about constitutions and constitution making. In Section 2, I try to characterize the deliberative setting as an institutional structure. In Section 3, the substantive core of the essay, I consider deliberation in some early constituent assemblies. In Section 4, I draw some normative conclusions. Constitutions and Constitution Making I shall limit myself to the era of modern constitutions, from 1776 onward. They can be broadly characterized as a written set of laws with the following features, (a) The document is referred to as “the constitution” or some equivalent phrase. (b) It is adopted as a whole rather than piecemeal. (c) It regulates the most fundamental aspects of political life. (d) It is more difficult to amend the constitution than to enact ordinary legislation. (e) The constitution takes precedence in case of a conflict with ordinary legislation. These features do not always go together. Also, what is and what is not fundamental is to some extent a matter of judgment. For my purposes here, these complications do not matter.