Popular Sovereignty And/or/in Deliberative Constitutionalism

Deliberative democratic theory has recently expanded to include constitution-making and constitutionalism. Yet there are two difficulties to which deliberative constitutionalism has not yet confronted. First, the notion of ‘constitution-making’ is ambiguous between the drafting process, i.e. the ‘making’, and the drafted system of institutions for collective action, i.e. the ‘constitution’. Thus far, theorists have focused on the making, not the constitution, meaning that there is at best only a sketchy vision of a properly deliberative constitutional regime (for that, see Parkinson 2016). On the other hand, deliberative constitutionalism has avoided the concept of popular sovereignty. Though ingrained in the history of constitutional thought, popular sovereignty may leave deliberative democrats fearful that it provides rhetorical cover for elite-driven constitutional reform and populist authoritarianism. In this paper, I close both gaps by partially rehabilitating the concept of popular sovereignty and by focusing on how the tension between its two components – the constituent power to establish constitutions and the constituted power to govern by constitutions – can be harnessed to model different possible deliberative constitutional regimes. Inspired by Loughlin and Walker (2007), I explore four such regimes and their characteristic institutions: deliberative containment; deliberative co-articulation; deliberative potential; deliberative irritant. Although deliberative constitutionalists may be drawn to deliberative co-articulation since it promotes deliberative forms of both constituent and constituted power, I conclude that there is no general answer to which deliberative constitutional regime is required by deliberative democracy’s central normative principles and that much depends on a regime’s fit with a theorist’s broader commitments. Nonetheless, such fit cannot be determined independently of a survey of the wider terrain of deliberative constitutionalism and its characteristic regimes, to which this paper greatly contributes. Works cited: Loughlin, M. and Walker, N. (2007) The Paradox of Constitutionalism: Constituent Power and Constitutional Form, Oxford, UK: Oxford University Press. Parkinson, J. (2016) “Ideas of Constitutions and Deliberative Democracy: A Conceptual Conclusion” in Reuchamps, M. and Suiter, J. (eds.) Constitutional Deliberative Democracy in Europe, Colchester, UK: ECPR, 147-168.