On the idea of democracy underlying Aileen Kavanagh's The Collaborative Constitution - Part One

Guest Blogger

Roberto Gargarella

Introduction

The Collaborative Constitution is one of the most interesting contributions produced by the legal academia in recent years.[1] It is a clear, easy to read and at the same time profound book, in which its author, Professor Aileen Kavanagh, investigates what is the best and most justified way to protect rights in a democracy. The book offers lucid answers to the dilemmas posed by the problem under examination. And it does so, at the same time, in a forceful and challenging way, which serves the author to clearly differentiate her views from many of the unfertile dichotomies that prevail in contemporary doctrine.  In her work, Kavanagh proposes to understand constitutionalism as "a collaborative enterprise between all three branches of government, where each branch has a distinct but complementary role to play whilst working together with the other branches in constitutional partnership" (Kavanagah 2023, 1).[2] Her position implies going beyond traditional “binary options,” like the following: to think that the task of protecting rights corresponds primarily to the courts, or to legislatures; to conceive of institutional work either as "the solitary domain of a Herculean super-judge” or in relation to “the dignified pronouncements of an enlightened legislature" (ibid., 7); to approach constitutional law as the "political constitutionalists" do, or in the opposite way, following the criteria of the "legal constitutionalists" (ibid., 3).

For Kavanagh’s collaborative approach, the duty of protecting rights should not lead the different branches of government to develop their obligations as "solitary actors in splendid isolation," but as "partners in a constitutional scheme," who avoid "undue encroachment on each other's rightful domains" (ibid.. 403). The "collaborative conception" demands from the different agents of government "more responsibility and restraint" than "conflict and confrontation" (ibid., 404). This exercise -Kavanagh clarifies at the outset- "does not require each contributor to the collaborative process to play the same tune on the same instrument at exactly the same tempo" (ibid., 6). And this is because the aim of the collaborative constitution "is to combine the different tones, timbre and tempo of many voices," where each participant respects and supports the valuable contribution of the others (ibid.).

Throughout her book, Kavanagh calls for a recovery of some of the venerated "old virtues" of constitutionalism: "moderation and self-restraint, comity and compromise, civility and sensitivity, forbearance and fair play" (ibid., 404). For the author, the "image" that best expresses that collaboration is one that includes "constrained conflict, regulated rivalry and disciplined disagreement, channeled, filtered and mediated through the inherited institutional pathways of a constitutional democracy" (ibid., 407).

In this work, I am going to analyze only one aspect in The Collaborative Constitution, which I consider central within Kavanagh’s analysis. I am referring to the idea of democracy that runs through Kavanagh’s book, and which informs all her analysis of the ways in which the different branches of government act and might be expected to act. As I see it, the author assumes an unduly restricted conception of democracy, which ends up making her analysis controversial in descriptive terms and also normatively implausible. Through my critical references to Kavanagh's particular stance on democracy, I will be making a more general point: I will be interested in objecting to a highly debatable view of democracy and constitutionalism, which is widespread within contemporary legal scholarship.

PART I

“Mediated Majoritarianism”: A Madisonian Approach to Democracy

In The Collaborative Constitution, Aileen Kavanagh defends a narrow reading of democracy, where the concept of democracy appears basically superimposed with the concept of constitutionalism, and where there does not seem to be much room for civic activism outside the normal operation of the mechanisms of government.

Only occasionally -in fact, just twice in her complex book- Kavanagh refines her own approach to the democratic ideal: she then refers to the idea of "mediated majoritarianism". Kavanagh speaks, in that regard, of a "painstaking process of mediated majoritarianism where majority will is filtered, channeled and mediated through the inherited institutions of a constitutional democracy" (Kavanagh 2023, 416). For her, "the government of the day" is "merely" the "temporary custodian of the constitutional order, not its commander and master". The function of the government ("the current custodians") is then, simply, "to pass it on in good constitutional shape" (ibid.).

Thus presented, Kavanagh’s reading of our constitutional democracies appears openly based on what I would call a "three-branches conception of democracy," this is to say, an organization of government that revolves around the activity of the three branches of government (which decide, each in its area of competence, and which control each other), and where the role of "We the People" is reduced and strictly limited to the periodic election of its public officials. Kavanagh’s restrictive reading of our constitutional democracies becomes manifest, for instance, when she discusses the virtues and problems of contemporary constitutional democracies. When she develops such an analysis, her narrow stance on democracy emerges quite visibly: she is exclusively or fundamentally thinking about the ways in which the three branches of government relate to each other Her questions in this regard are of this type: Do the different branches check each other? Or are they in permanent conflict, one with the others? Each branch cooperates or collaborates of government with the rest of the branches?

In a particularly salient way, her adherence to a restricted idea of democracy -her adherence to the "three-branches conception"- appears when she comments on and criticizes the dialogical conceptions of democracy currently in vogue. At that point Kavanagh reveals that, for her, “democratic dialogue” implies making reference just to the way in which the different branches interact.[3] Like so many other authors, Kavanagh thinks of "democratic dialogue", taking as a given that "We the People" does not actively participate in that conversation (except in a very tenuous and indirect way, that is, through the periodic vote).[4] However, it should be clear, this view is highly controversial.[5] This is not only because the discussion on the meaning of the Constitution should naturally correspond to its authors (or "owners"), who are at the same time the main subjects affected by the decisions adopted in this regard. This is also because in this way - this is to say, without the active intervention of "We the People"- the possible solutions to the problems of democratic constitutionalism become dependent on what those in positions of power want to do about it - that is, dependent on what the same people who have given rise to such problems can do (I shall come back to this point below).[6]

A good way to understand and better analyze Kavanagh's position on democracy is to examine the model on which it is based. In my view, Kavanagh’s “mediated majoritarianism” is clearly related to James Madison's understanding of democracy. Between the two visions there are many fundamental coincidences, and at least one crucial difference. Among the coincidences, I would mention the following ones. First of all: for Madison, the whole purpose of the representative system is to "filter" or "refine" the majority voice through the action of the different branches of government. In Madison's terms, expressed in the famous Federalist Papers n. 10, the republican government was established so as to "refine and enlarge public opinions, by passing thdem through the medium of a chosen body of citizens." The same goes for Kavanagh’s “mediated majoritarianism.” For Kavanagh, as we know, the majority will, needs to be “filtered, channeled and mediated through the inherited institutions of a constitutional democracy” (Kavanagh 2023, 416). In addition, for Madison, the purpose of “filtering” the will of the people is to improve the decision-making process, under the assumption that the representative’s “wisdom” would “best discern the true interest of their country,” and their “patriotism and love of justice” would not be sacrificed “to temporal or partial considerations”. Similarly, for Kavanagh, the purpose of a “representative democracy” is to create “some ‘deliberative distance’ between the people and their elected representatives so that elected politicians have sufficient opportunity to discern and devise policies in the true interest of the country” (ibid., 44). This means to say that, for both Madison and Kavanagh, representatives enjoy epistemic advantages over ordinary citizens. Because of both their own personal capacities ("wisdom", "patriotism", “love of justice”) and the institutional conditions within which they perform their task (i.e., the "deliberative distance"), representatives can access knowledge that others cannot. It is crucial to recognize, moreover, that - for both Madison and Kavanagh - these epistemic advantages attributed to representatives (based on certain institutional conditions) go hand in hand with the "disadvantages" associated with majoritarian politics (majoritarian politics which, like representative politics, does not deserve to be identified with an action without limits and without procedural rules). Thus, Madison values representation, assuming that people at large would tend to “sacrifice” the “true interests” of the country to “temporal or partial considerations”, in the same way that Kavanagh values a "representative democracy" in which electors and elected are strongly separated (rather than linked to each other), because of the need to “avoid the corrosive effects of electorally hypersensitive governments” (ibid., 45).

In this respect, I would stress the fact that both Madison and Kavanagh subscribe to an elitist position, based on what I would call a "democratic distrust." The idea of “democratic distrust” is similar to what Roberto Unger called the “discomfort with democracy” -in his terms, the “dirty little secret of contemporary jurisprudence” (Unger 1996, 72).[7] In Madison, that "democratic distrust" is what led him to maintain (in the most important paragraph of his best-known text, Federalist Papers n. 10) that "the public voice, pronounced by the representatives of the people, will be more consonant with the public good than if it is pronounced by the people themselves, summoned for the purpose". For that reason, “Madisonian democracy” feared much more the oppression that could originate in the popular majorities, than the oppression that could be imposed by minorities, from within the representative system (i.e., the slave-holding minorities in Congress).[8] Through her book, Aileen Kavanagh seems to advocate for the same elitist approach to democracy. Like Madison, she also considers that the key to the representative system is to ensure the existence of "a significant gap between what the people want and what legislators decide" (ibid., 44). For her, the only imaginable alternative to this (extreme) way of understanding political representation is (also the most extreme): “populism.” The risk at stake is, in fact, that of "succumbing" to a "populist" world where "democracy means the direct determination of government policy by the people" (ibid.). 

For such reasons, Kavanagh advocates for a conception of democracy based exclusively on the activity of the three branches of government: one in which "We the People" is virtually absent. In this way, she ends up conflating constitutionalism with democracy; which implies saying that she ends up confusing the problems of democracy (crisis of representation, disregard for popular demands and needs, etc.) with the problems of constitutionalism (undermining of checks and balances, deterioration of the system of "checks and balances", etc.).

We have seen up to this point the strong parallels that exist between the (elitist) conception of democracy advocated by Madison and that defended by Kavanagh. Let me now examine, as anticipated, the crucial difference I see between the two approaches. In my view, the crucial difference that separate the two approaches appears in the treatment and consideration given to those government officials charged with "filtering" the public voice. In Madison, the distrust of the citizenry immediately translates into a deep distrust of public officials. Certainly, for Madison, representatives could be expected to be more capable or better educated than the majority of citizens. However, it was also clear to him that the institutional system could not rest on the public officers’ proper moral dispositions, as if they were immune to self-interest, to feelings of selfishness, to greed. On the contrary, the institutional system had to be conceived entirely to counteract, or at any rate to channel appropriately, such undesirable moral dispositions. This is why, for instance, in Federalist Papers n. 51 he -famously- made reference to the enormous risk of abuse of power, and stated that "the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others." The assumption was that public officials were not and would not behave as "angels" ("if men were angels, no government would be necessary"), and that is why it was urgent, for him, to build a constitutional system riddled with "checks and balances". The whole constitutional system, in the end, would consist of just that: a collection of tools capable of providing public officials with appropriate incentives and checks, aimed at discouraging abuses of power and promoting cooperation.

Kavanagh’s approach to the topic seems to be, at this point, a completely different one. For her, the profound distrust expressed, through her book, towards the citizenry seems to be transformed into trust (excessive, unnecessary, at one point surprising, I would say) towards public officials. Of course, Kavanagh is aware of Madison's assertions on the matter (in fact, Kavanagh quotes Madison, at length, only once, on page 95 of her book, and it is to refer to the famous paragraph of Federalist Papers n. 51, just quoted). However, a central part of her argument seems to rest on the exercise of appropriate moral dispositions by public officials (contrary to Madison, who proposed a whole constitutional system in order to provide public officers with the right incentives). In that sense, Kavanagh's argument seems to rely, ultimately, on the "angelic" status of government officials. It is not surprising, then, that at key moments in her work (typically, in the conclusions of her book) Kavanagh argues (quoting Samuel Issacharoff and, through him, William Gladstone) that "a healthy constitutional democracy ultimately depends on the good faith of those who work it" (ibid., 412); or appeals to the Weberian "ethics of responsibility"; or refers to a "sense of constitutional fair play" (ibid., 414). In sum -and I want to underline this- much of the aims and pursuits of Kavanagh's book, including, in particular, the "collaborative" and "cooperative" behaviors of the various branches of government, or the "constitutional restraint" of officials, come to depend on the moral dispositions and personal attitudes of those governmental actors. Unfortunately, such view is open to important objections. First, because the kind of problems we face in this era of democratic crisis seem to refer to structural, rather than attitudinal issues – in other words, they refer to failures in the institutional system, rather than to moral failings of its principal agents. Secondly, the approach presented seems problematic, because, in principle, we have no reason to expect such cooperative behavior from public officials, particularly in light of institutional structures such as those in place today: men are not angels, and our institutional structure does not help them to become angels. Moreover, and more significantly: at present, all institutional incentives seem to be misdirected. Officials have within their reach enormous advantages and privileges (outright extraordinary, in fragile democracies), while the controls and limits they face are increasingly weak or less efficient than before (virtually non-existent, in fragile democracies). In such institutional conditions -obviously aggravated in this time of "eroded democracies"- there is no reason to expect angelic, cooperative or collaborative behavior from public officials: quite the contrary. It is therefore a serious problem that Kavanagh's constitutional conception relies on cooperative behaviors that would be quite atypical in "normal times", and that are simply unthinkable in degraded institutional contexts, such as the present one (I will return to this point below).

In sum, to maintain, intact in its essence, a Madisonian conception, two hundred years later, is a problem, in democratic and constitutional terms. In democratic terms we face a problem, because today the citizenry has new, intense and reasonable civic demands, which the old Madisonian model is not able to recognize and satisfy. Two hundred years ago, most of the population was legally or informally excluded from the political system, which is not the case today. Today, we have universal suffrage and universal education; moreover, the vast majority of the people not only have the right to participate in politics, but also feel democratically "empowered". In fact -I shall assume- most people consider (rightly) that they have the right to demand and get answers from public officials. The Madisonian idea of democracy -I submit- does not fit well within this new framework of rights, demands and expectations. Moreover, Kavanagh’s Madisonian approach is objectionable in times of "constitutional corrosion", given that this institutional context -as we shall explore below- does not allow us to expect the desired behaviors from public officials (i.e., attitudes of “self-restrain” and "mutual control" that, in principle, Madison could reasonably expect at the end of the eighteenth century).

 Roberto Gargarella is Professor of Constitutional Law at the Universidad de Buenos Aires. You can reach him by e-mail at roberto.gargarella@gmail.com.