Deliberative constitutionalism, popular sovereignty and alternative forms of government

Although deliberative democratic theory has traditionally positioned itself as a complement or corrective to representative bodies making ordinary law, it has recently expanded to the field of constitution-making and bodies formulating higher law. Yet this ‘deliberative constitutionalism’ has yet to confront two difficulties. First, ‘constitution- making’ is ambiguous between the process of drafting a constitution (‘making’), and the drafted system of institutions for collective action (‘constitution’). Thus far, scholarly attention has been squarely on the former, meaning that there is at best only a sketchy picture of a properly deliberative constitutional regime as an alternative to existing representative democratic constitutional regimes (see Parkinson 2016). Second, and as a direct consequence thereof, deliberative constitutionalists have not explored which alternative forms of government might be warranted by different deliberative constitutional regimes. In this paper, I tackle both these difficulties by modelling four different deliberative constitutional regimes – ‘deliberative containment’, ‘deliberative co-articulation’, ‘deliberative potential’, ‘deliberative ‘irritant’ (inspired by Loughlin and Walker 2007) – and by illustrating their characteristic institutional mechanisms, including such alternative institutions as one-shot or continuous sortition bodies, deliberative polls and maxi-public combined with varieties of plural voting, amongst others. In this way, I propose a clearer systemic vision of not just what alternative forms of government may be found under different deliberative constitutional regimes but which such regimes, with their expressed basic values, are liable to justify those alternative institutions.