Constitucionalismo fuerte y democracia deliberativa: Inconsistencias en Rawls, Dworkin, y AlexyStrong constitutionalism and deliberative democracy: Inconsistencies in Rawls, Dworkin, and Alexy

Abstract

Abstract In the current context, strong constitutionalism is further challenged by the objections to judicial review and the deliberative turn of democracy. Despite the potential of both caveats, the problem is that a juricentric and juristocratic constitutionalism has globally expanded. The paper’s argument is that there is an inconsistency in some theories that—at the democratic level—start from a deliberative conception, but—at the constitutional level—defend such a strong model, which hinders the inclusive dialogue ideal. This is the case of those conceptions of courts as an “exemplar of public reason” (Rawls), a “forum of principles” (Dworkin), or an “argumentative representation institution” (Alexy). To support this argument, the paper is structured as follows. First, it presents the indifference of the predominant constitutional culture to the criticisms of the judicial authority of strong constitutionalism, as well as to the deliberative turn of democracy. Then, it makes explicit the inconsistency of a group of theories which, while subscribing to a deliberative conception of democracy, subscribe to a strong model of constitutionalism. Finally, it argues that, in a context in which the objections to the judicial review and the deliberative turn of democracy have not been taken seriously, it is essential to reinforce both caveats to achieve a better constitutional model.