Deliberative Democracy and Constitutionalism
Upon reflection, we can see that institutionally as well, complex constitutional democracies, and particularly those in which a public sphere of opinion formation and deliberation has been developed, engage in such recursive validation continually. Basic human civil and political rights, as guaranteed by the Bill of Rights to the U.S. Constitution and as embodied in the constitution of most democratic governments, are never really “off the agenda” of public discussion and debate. They are simply constitutive and regulative institutional norms of debate in democratic societies that cannot be transformed and abrogated by simple majority decisions. The language of keeping these rights oil the agenda mischaracterizes the nature of democratic debate in our kinds of societies: although we cannot change these rights without extremely elaborate political and juridical procedures, we are always disputing their meaning, their extent, and their jurisdiction. Democratic debate is like a ball game where there is no umpire to interpret the rules of the game and their application definitively. Rather, in the game of democracy the rules of the game no less than their interpretation and even the position of die umpire are essentially contestable. Contestation means neither the complete abrogation of these rules nor silence about them, When basic rights and liberties are violated the game of democracy is suspended and becomes either martial rule, civil war, or dictatorship, when democratic politics is in full session, the debate about the meaning of these lights, what they do or do not entitle us to, their scope and enforcement, is what politics is all about. One cannot challenge the specific interpretation of basic rights and liberties in a democracy without taking these absolutely seriously.