Democratic constitution in-process: Toward an egalitarian constitutional order.

摘要

Modern constitutional theory has viewed the constitution as a political institution that is detached from citizens' ordinary democratic practices. Preoccupied with the need for closure, this approach has sought to establish an enduring normative order that is beyond the reach of everyday democratic activities and continuous struggles for transformation. In contrast, I argue that if we theorize the constitution as an open process, it is able to promote equality and freedom and facilitate a progressive normative transformation of liberal society. Calling it a constitution in-process, I also show how the constitution pursues greater equality, inclusion and fairness in constitutional process.;The model of the constitution as an open process softens the sharp distinction between constitutional life and everyday democratic activities. I reevaluate the constitutional theory of Bruce Ackerman and his distinction between those rare extraordinary moments of constitutional politics and the long periods of ordinary political practices. Instead, under the model of a constitution in-process, constitutional changes are seen as regular political events, motivated and strengthened by the ongoing constitutional activism of a mobilized democratic citizenry. I use Jurgen Habermas's theory of deliberative constitutionalism to illustrate the important role of public deliberations in the civil society for the progressive normative reinvention of the constitutional project. I argue for the need for new alternative forms of constitutional deliberation that convene after the moments of closure imposed by formal constitutional decision-making.;However, a transformative constitutional model is indispensable without an adequate egalitarian strategy for structural transformation of society. I look at Roberto Unger's social theory that envisions the constitution as an open process that has the capacity to overcome systemic inequalities and power disparities that impede citizens' participation in all social interactions---political, public and economic. Finally, I maintain that a progressive constitutional model needs also to redefine the way in which citizens think, write and interpret norms of justice. The constitution is thus seen as an "inter-text" that embodies the voices of the Others, the perspective of alterity. I develop this intertextual feature of the constitution by applying the theories of Mikhail Bakhtin, Julia Kristeva and Jacques Derrida to constitutional interpretation.