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).
* Project funded/co-funded by the European Union (ERC, Project 101096176 -
ICDD). The views and opinions expressed are solely those of the author and do
not necessarily reflect those of the European Union or the European Research
Council. Neither the European Union nor the granting authority can be held
responsible for them.
[1] A.
Kavanagh, The Collaborative Constitution, Cambridge: Cambridge
University Press (2024).
[2] It is, moreover, an enterprise in which many other
institutional actors are also involved, "beyond the usual constitutional
coterie" (ibid., 7).
[3] Kavanagh
says, for example: “Yet, whilst the metaphor of dialogue usefully highlighted
the interaction between the branches, Chapter 2 argues that it lacked the
analytical resources to capture the complexity of the constitutional
relationships between the branches of government. The malleability of the
metaphor meant that it could be applied to any form of inter-institutional
interaction, ranging from polite conversations between friends to
no-holds-barred shouting matches between enemies locked in combat. For that
reason, the idea of dialogue failed to take us beyond the Manichean narrative
of ‘courts versus legislature’ and ‘rights versus democracy’. In fact, it
resurrected the antagonistic narrative, shifting the debate to which branch
should get ‘the last word’ in the dialogue: the legislature, as ‘political constitutionalists’
preferred, or the courts, as ‘legal constitutionalists’ claimed” (Kavanagh
2023, 3).
[4] For a
collection of these views see, for example, R. Levy, H. Kong, G. Orr & J.
King, Deliberative Constitutionalism, Cambridge: Cambridge University
Press (2018).
[5] I actually
defend such an approach to a dialogic democracy in R. Gargarella, The Law as
a Conversation Among Equals, Cambridge: Cambridge University Press (2023).
[6] Kavanagh’s
approach to democratic dialogue is also vulnerable to other objections. To
begin with (and contrary to what she claims), there is nothing in the “metaphor
of dialogue” that prevents us to “capture the complexity of the constitutional
relationships between the branches” or -more significantly- to recognize the
value and possibilities of having “We the People” participating in the
constitutional decision-making process. The dialogue may be more and more
inclusive; the dialogue (which does not force us to see who keeps “the last
word”) may refer to an “unending” or “ongoing conversation”; the dialogue does
not need to be “Manichean”. This is to say that there is nothing in the
“analytical” structure of a dialogue that required us to “resurrect” an
“antagonist narrative”. In fact, many of us favor democratic dialogue just
because the opposite of what Kavanagh claims. For many of us, democratic
dialogue is valuable precisely because it helps us (or, at least, has the
potential to help us) to achieve more nuanced responses, find more informed
alternatives, craft more refined solutions.
[7] Unger describes this “discomfort
with democracy” as manifest in: “the ceaseless identification of restraints on
majority rule … as the overriding responsibility of … jurists; … in the effort
to obtain from judges … the advances popular politics fail to deliver; in the
abandonment of institutional reconstruction to rare and magical moments of
national refoundation; in an ideal of deliberative democracy as most acceptable
when closest in style to a polite conversation among gentlemen in an
eighteenth-century drawing room … [and] in the … treatment of party government
as a subsidiary, last-ditch source of legal evolution, to be tolerated when
none of the more refined modes of legal resolution applies” (ibid.). See R. Unger,
What Should Legal Analysis Become?, London: Verso (1996).
[8] See, in this respect, Robert
Dahl’s description of “Madisonian democracy”. For Dahl, this conception did not
express "much anxiety about the dangers arising from the tyranny of
minorities [but] in comparison, the danger of the tyranny of the majority
appeared as a source of acute fear" (Dahl 1956, 9). R. Dahl, A Preface to
Democratic Theory, Chicago: The
University of Chicago Press. (1956).