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Deliberative theorists and practitioners have increasingly grappled with the concept of deliberative constitutionalism and its distinctiveness from other constitutionalisms. A fast-growing literature explores whether deliberative democratic instruments enhance constitutional reform processes (Levy, 2019; Reuchamps & Suiter, 2016; Welp & Soto, 2020) and whether constitutional limits and norms enhance elite and maxi-public deliberation (Levy et al., 2018). Spanning political and constitutional theory, the complicated puzzle of deliberative constitutional regimes is coming together, piece by piece. Researchers defend deliberative adaptations or interpretations of many familiar political practices: constitutional review (Bello Hutt, 2018; Ghosh, 2010; Kong & Levy, 2018; Mendes, 2013; Nino, 1996; Zurn, 2007), electoral law (Levy & Orr, 2016), voting (Levy, 2013), opinion polling and media regulation (Levy & Orr, 2016), direct democratic instruments (Levy, 2017), decentralization and federalism (Hollander & Patapan, 2018; Kong & Levy, 2018; Nino, 1996), electoral representation (Bello Hutt, 2020), legal rights practices (Kong & Levy, 2018; Levy, 2022; Williams & Reynolds, 2018), bureaucratic administration (Mashaw, 2018); national security decision-making (Derosa & Regan, 2018), civilian juries (Gastil & Hale, 2018), and presidentialism versus parliamentarism (Bächtiger & Wegmann, 2014; Gittings, 2018; Nino, 1996). Others canvas the forms that deliberative minipublics might take as one institutionalized subsystem in the broader political system (Courant, 2022; OECD, 2021; White, 2017). Some elaborate theories of institutional design and scaling or of deliberative systems (Bächtiger & Wegmann, 2014; Hendriks, 2016; Landwehr, 2015; Levy, 2022; Mansbridge et al., 2012; Niemeyer, 2014; Smith, 2009). Finally, empirically minded researchers scrutinize the relation between the constitution-making process and constitutional outcome (Eisenstadt et al., 2015; Ginsburg et al., 2009). More democratic outcomes are associated with more democratic processes: a substantively deliberative institutional order more often emerges from a constitution-making process with substantively deliberative inputs. Each piece reveals more of the picture of a constitution whose “overriding objective” consists in “creating a framework for public deliberation” (Kong & Levy, 2018, p. 626). Our understanding of how each piece fits with others and the larger picture may be refined through two cross-cutting distinctions. First, there is the direction of effect or influence between deliberative democracy and constitutionalism: “deliberation-to-law” effects occur when deliberative democratic instances influence constitution-making processes; “law-to-deliberation” effects occur when constitutional limits influence deliberation amongst political elites or the maxi-public toward deliberative aspirations (Kong & Levy, 2018, p. 627). Second, constitutional limits may influence different contents or topics: “first-order deliberation” concerns elite or maxi-public deliberation about citizens’ substantive interests; “second-order deliberation” concerns elite or maxi-public deliberation about the institutions and limits governing deliberation about citizens’ substantive interests (Kong & Levy, 2018, p. 630). Since many such institutions and limits are constitutionally protected, these distinctions are cross-cutting: second-order deliberation “implicate[s] both law-to-deliberation and deliberation-to-law” because deliberation about altering those institutions and limits is simultaneously deliberation about engaging constitution-making processes to amend basic law (Levy & Kong, 2018, p. 6). This cross-cutting character fosters a “dialectical” view of “the relationship between deliberation and constitutional practice” (Levy & Kong, 2018, p. 6). Put differently, “a full picture of second-order deliberation accounts not only for whether new second-order norms help to improve democratic deliberation, but also whether robust deliberative democratic procedures created the new norms” in a second-order “feedback loop” (Levy, 2018, p. 356). Thus, a possibility space emerges wherein deliberative constitution-making procedures and deliberation-enhancing constitutional features influence one another, entrenching or incorporating deliberative instances in the resulting constitutional order. This cross-cutting space should be an impetus for deliberative constitutionalists to describe how these procedures and features hang together as a cohesive constitutional regime and to formulate explicit evaluative criteria for a regime's combination of procedures and features. Yet they have typically prioritized narrower first-order objectives over this broader higher-order task. Certainly, some propose criteria for assessing the desirability of institutional arrangements and communicative flows within a deliberative system. Mansbridge et al. (2012, pp. 11–12) identify epistemic, ethical, and democratic functions along with five deliberative pathologies as a critical yardstick for deliberative systems. Mendes (2013, pp. 22–23, 44) defines five values (epistemic, communitarian, psychological, educative, and intrinsic) that deliberative institutions might differentially realize. These criteria may be better suited to evaluating particular institutions and practices, not their combination and interaction. Fishkin (2018, p. 200) remarks of Mansbridge et al. (2012) that “these distinctions and criteria … focus on components rather than the operation of the overall system.” I second Fishkin's remark. Such criteria may provide insufficient guidance for discriminating between different regimes. In a deliberative system, one site's deliberative quality does not permit reliable inference to its or the system's deliberative quality, making it sometimes unclear whether first-order criteria warrant the deliberative enhancement of a particular site. When reimagining the constitution as a framework for public deliberation, deliberative constitutionalists ought to thematize more explicitly normative properties that facilitate the evaluative comparison of entire frameworks. This would enhance our understanding of deliberative constitutional regimes as instances of political engineering that “might be activated and steered” (Hendriks, 2016, p. 46; Levy, 2022, p. 34). It also advances “meta-deliberation” about the appropriate deliberative distribution within regimes (Thompson, 2008, p. 515). Who deliberates how and to what effect? Different answers reflect different constitutional theories and evidentiary bases. Overall, a normative account should identify targets for political engineering and the appropriate evidence for adjusting one's aim. Which normative properties characterize a framework for public deliberation qua constitutional regime while tracking systemic considerations? Rather than lower-level intrinsic or instrumental properties, deliberative constitutionalists should consider higher-order relational properties that support a dialectical understanding of the relationship between deliberative democracy and constitutions. An imperfect example is found in Parkinson's (2018) typology of the interactions between different constitutional understandings and deliberative approaches. Each interaction yields a different type of constitutional regime wherein deliberation plays a greater or lesser role. This striking typology has two major shortcomings. Some regime types do not motivate any recognizable deliberative political engineering. Those which motivate it do not, however, reveal interaction effects or feedback loops between constitutional understandings and deliberative approaches which typify a dialectical picture of deliberative constitutional regimes. Simply, this typology reveals only static relational properties. 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systemic functions hang together in constitutional More is for an understanding of the and second-order effects between deliberative democratic practices and constitutional systems. one the different relational properties in other constitutional and the institutional that may one should more and of the interactions between deliberative democratic practices and constitutional More should be to whether and how democratic are constitutional through the of new and This and would deliberative and constitutional to formulate desirability and that are both to and to the in to more deliberative constitutional regimes. over constitutional and political one may relational properties to that a constitutional regime is and that its values or properties in the to the existing values or properties. In making the normative and institutional explicit of may help deliberative constitutionalists their and a of the on of this the two of the and deliberative and the democracy and political the the and the is a in the of the of with interests in and political (2023-08-21)
***This entry has been automatically imported via OpenAlex by LIST harvest scripts. Please refer to https://doi.org/10.1111/1467-8675.12699 for the original and latest version of the publication*** (2026-07-01)
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