A Question of Institutionalization: Habermas on the Justification of Court-Based Constitutional Review

Abstract

Habermas’s combined normative and sociological theory of constitutional democracy oriented towards procedurally-structured participatory deliberation is one of the most productive and robust theories of deliberative democratic constitutionalism available. This paper looks at one component of that theory, its conception of judicial review. I claim that the normative political theory he advances meets sufficiently the demands for a convincing accounts of democratic legitimacy, deliberative processes, and the import of constitutionalism to both. The justification of the function of constitutional review, furthermore, follows convincingly from that normative theory. However, I also argue that his most distinctive arguments in favor of a judicial institutionalization of constitutional review are unconvincing. Better arguments are found, rather, in his further development of the basic justificatory strategy found in Dahl’s and Ely’s arguments for the institution of judicial review: an independent judiciary is institutionally well-suited to policing the procedural legitimacy of democratic processes. Finally, I contend that the elaboration of this line of thought in terms of deliberative democratic constitutionalism threatens, once again, to overdraw on the legitimacy credit extended to a judicial institutionalization of constitutional review, precisely because of the greatly expanded tasks such review would need to fulfill given Habermas’s more ambitious account of deliberative democratic processes in comparison with the earlier pluralist and majoritarian models. I begin by explicating the procedural conception of legitimacy that underlies Habermas’s defense of constitutional democracy and justifies the function of constitutional review. Then I turn to his differentiated account of democratic processes that prioritizes deliberations aimed at consensus on the principles of constitutional democracy structuring higher law, but that does not deny the import or place of pragmatic reasoning, ethical-political self-clarification, aggregation and bargaining. Finally I examine his arguments for the institutionalization of the function of constitutional review in an electorally-independent judiciary to assess the extent to which there might be lingering worries about paternalism in that account.