Deliberative Democracy and Constitutionalism: The Limits of Rationality Review

Abstract

Recent political evaluation of rights-based constitutional review of legislation and governmental policy in South Africa suggests that our most fundamental political ideal – constitutional democracy – is internally conflicted. Democracy and constitutionalism are perceived by some to serve opposing interests. Those who think differently must demonstrate the internal coherence of constitutional democracy on two levels. The first concerns the institutional design of constitutional review, that is, the procedures, powers and composition of the designated body for exercising this function. The second concerns the extent to which the substantive normative standards employed in the course of constitutional review are necessary to facilitate democratic accountability. The article addresses the latter aspect. A deliberative understanding of democracy provides a fruitful vantage point from which to evaluate the democratic function of standards of constitutional review. The deliberative model grounds democracy in the duty of public justification through discursive engagement. Seen from this perspective, democratically informed standards of constitutional review must comply with two basic conditions, namely maximising deliberative equality and participation, and compelling justificatory accounts for collectively binding decisions in terms of a constitutionally entrenched, integrative value system. Of all the standards employed by the courts for the purpose of constitutional review (such as rationality, reasonableness, fairness, proportionality), a deferential rationality standard is most problematic in this respect. It can lead to a narrow instrumentalist perspective for the evaluation of governmental objectives, which is incapable of facilitating substantive forms of democratic control that could meaningfully enrich the deliberative basis of democratic decision making.