I champion a deliberative right to constitutional silence. It entitles individuals to reflect upon the arguments and reasons in favour or against changing or re-interpreting constitutional content under proper conditions. After reflecting on the place of silence in intellectual history and its features and virtues, I define the right to constitutional silence. It has four components: salience, time, reflection and publicness. Next, I discuss its grounds. I argue that it is an institutional legal right that citizens have in a deliberative constitutional democracy. This entails that, while there is a moral case for the right to silence, I here circumscribe my argument to the province of legality and constitutionalism. I finish discussing matters of institutionalisation. I offer three suggestions: two proposals about content and one about procedure. First, the right to silence applies primarily to deliberations about ‘thin’ constitutional matters found in preambles and introductory sections of constitutions. Second, it warrants public intervention in matters of public discourse of constitutional import, to avoid private power from interfering with the people’s sphere of constitutional reflection. Third, I adapt a proposal made elsewhere and suggest that a non-decisional interpretive mini-public could be a place to implement the right to silence.

Courts do many good things. Judges carefully consider individual claims and arguments,1 and contrast them against the law in light of evidence. Their decisions are argued for, are public, and can be contested in form and content in different hierarchical stages. Additionally, and among other things, these practices are said to contribute to the will-formation of the public sphere and improve the quality of the legislative process.2

Legal scholars generally consider the theorisation and constitutionalisation of constitutional interpretation as a matter for the courts. This article first challenges this tendency on conceptual grounds, showing that no institutional commitment follows from the nature of interpretation in law, constitutional law included. It then provides guidance for thinking about institutional perspectives according to two criteria: the nature and normative strength of the sources interpreted and the capacity of the interpreter to include and consider every possibility affected when her interpretation carries collective effects and is authoritatively final. The application of these criteria places the discussion on the grounds of democratic theory. The article thus reviews competing democratic theories and champions deliberative democracy as the alternative whose constitutive features best allow for the development of institutions capable of exercising constitutional interpretation when the imposition of meaning on the constitution is final and carries erga omnes effects.