Cass Sunstein, Designing Democracy: What Constitutions Do. (2002).

Main Argument: The central goal of a constitution is to create the preconditions for a well-functioning democratic order, one in which citizens are genuinely able to govern themselves. Sunstein contends that a constitution should promote deliberative democracy, (political accountability with a high degree of reflectiveness and a general commitment to reason-giving) [7]. This, in itself, is a check/balance on the tendencies of the majority to rule. Author is trying to link the project of constitutionalism with the notion of deliberative democracy.
Key Definitions:
Deliberation (Hamilton & Rawls): group discussion is likely to lead to better outcomes because of the presence of competing views [14]
Group Polarization: members of a group move toward a more extreme point in the direction indicated by their pre-deliberative tendencies
Underlying mechanisms: social influences on behaviour; use of the available “argument tools” [15]
Enclave Deliberation: deliberation by likeminded groups [both a danger to social stability and a safeguard against threat to rights]
== Notes ==
Why groups polarize?
– Polarisation: when a direction of a group is enhanced by discussion
– Risky shift: deliberation tends to promote greater risk-taking
– Choice shift: deliberation leading to a movement toward the more extreme position
– Mechanisms of polarisation: social comparison (the desire to be perceived positively by one’s group) & persuasive arguments (movement based on the most convincing argument
Depolarisation: [27]
– Based in adherence to group membership (inclusivity/exclusivity)
– Depolarisation if there are subgroups that conflict (movement toward the middle)
– Varies with likeability of group leaders, identity and solidarity
– Depolarisation is less pronounced with competing groups if a) subgroups have fixed positions; b) the ability to identify with their groups (social responsibility?)
– This is basically a median voter theorem
*Timing matters! Most polarisation games are repeated games [30] In repeated polarised games, views will become more polarised than they were initially [30]
Institutions & Deliberation:
– Institutions (bicameral parliament, the electoral college) are set up to have deliberation built-in [36]
– A democratic constitution ensures social spaces for deliberation by like-minded persons but also increases the likelihood that members of the relevant groups are not isolated from conversation with people having quite different views
– Institutions should be designed to ensure that when shifts are occurring, it is not because of arbitrary or illegitimate constraints on the available range of arguments –> central to constitutional design
– Constitutions protect deliberation within enclaves, to ensure that those inside enclaves hear alternative views, and to ensure as well that those outside of particular enclaves are exposed to what enclave members have to say [47]
– Necessary to design approaches ensuring that heterogeneity is not a source of social fragmentation, but helps to identify problems
Constitutional Principles without Constitutional Theories:
– People can often agree on constitutional practices, and even on constitutional rights, when they cannot agree on constitutional theories
– Problems arise from the level of particularity in a constitution [51]
– Rules and analogies: attempt to promote a major goal of a heterogeneous society: to make it possible to obtain agreement where agreement is necessary and to make it unnecessary to obtain agreement where agreement is impossible
– It is often possible for participants in constitutional law to converge on both abstract principles and particular outcomes without resolving large-scale issues of the right or the good [54]
– Two goals of a constitutional democracy and a liberal legal system: to enable people to live together and to permit them to show each other a measure of reciprocity and mutual respect [56]
Conclusions: Democracy’s Constitution
– A deliberative democracy, operating under a good constitution, responds to political disagreements not simply by majority rule but also by attempting to create institutions that will ensure reflection and reason-giving [239]
– Constitutional institutions, such as a system of checks and balances, are best understood not as a way of reducing accountability to the public but as a guarantee of deliberation [239]
– Democratic constitutions are not mere paper but pragmatic instruments, designed to solve concrete problems and to make political life work better; constitutions are badly misconceived if they are understood as a place to state all general truths or to provide a full account of human rights