This chapter and the next are more experimental and speculative than the preceding ones, proposing some institutional transformations for the processes of constitutional review in democratic societies. The proposals no doubt develop out of my own knowledge of and familiarity with the U.S. system of constitutional review – probably unavoidably also including my dissatisfactions with that system – but I do not intend them to be merely provincial in nature. At the very least, I believe the basic conception of deliberative democratic constitutionalism that I have been developing in this book supports the general spirit and aims animating the recommendations, even if the particular recommendations turn out to be problematic or questionable. They are meant, then, more as opening moves in an ongoing deliberative democratic project of constitutional government, rather than definitive conclusions about or claims to the indispensable requirements for constitutional democracy.

THE PROBLEMS OF DESIGNING INSTITUTIONS OF CONSTITUTIONAL REVIEW

Let me now present, in perhaps an overly schematized way, a set of considerations that can move the discussion forward from the ideal to the real, from purely normative considerations to more concrete and complex considerations of institutional design. In the first section I consider tensions between the ideals of deliberative democratic constitutionalism – in particular its conception of the function of constitutional review – and the unavoidable realities of ongoing constitutional elaboration within institutions intended to protect the constitutional structures of deliberative democracy.