Dialogical Constitutionalism and Constitutional Justice. A Long Return to the Deliberative Virtues of the Public Action of Unconstitutionality

Abstract

Through Dialogical Constitutionalism (DC), some theorists believe they have found an escape valve for the global discussion on the legitimacy of judicial control over the law. With the situated contextual methodology, this article analyzes the challenges that DC poses in Latin America, particularly in Colombia, in four sections: i) Why is an attractive theory; ii) Its differences from deliberative democracy (DD); iii) The arguments of Roberto Gargarella in defense of DD, DC, and “A Dialogue between Peers”. This invites us to question whether it is merely new packaging for old discussions. Lastly, iv) I will reflect on the advantages of the Public Action of Unconstitutionality (PA) as a participatory and deliberative legal challenge mechanism, which dialogical potential is not properly appreciated due to a preference bias. Additionally, I will address DC in its two versions: the Canadian institutional version and the conversational version, ultimately proposing a third nuestramerican approach.