Progressive constitutional deliberation: Political equality, social inequalities and democracy’s legitimacy challenge
| Published date | 01 August 2024 |
| DOI | http://doi.org/10.1177/02633957221074899 |
| Author | Aris Trantidis |
| Date | 01 August 2024 |
| Subject Matter | Articles |
https://doi.org/10.1177/02633957221074899
Politics
2024, Vol. 44(3) 453 –468
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/02633957221074899
journals.sagepub.com/home/pol
Progressive constitutional
deliberation: Political
equality, social inequalities
and democracy’s legitimacy
challenge
Aris Trantidis
University of Lincoln, UK
Abstract
Social inequalities fuel a debate about the meaning of political equality. Formal procedural equality
is criticised for reproducing discriminatory outcomes against disadvantaged groups but affirmative
action, particularly in the form of group quotas, is also contested. When opposing conceptions
of substantive equality support divergent views about which procedural rule genuinely respects
political equality, democracies cannot identify a standard or rule of procedural fairness to be
widely accepted as fair. This dispute over procedural fairness can carry on indefinitely and could
challenge democracy’s legitimacy claim. I argue that democracies can renew their legitimacy claim
by embracing this debate and by accommodating it through constitutional deliberation that must
be as impartial and meaningful as possible. Impartiality ideally requires the presence of every
citizen in this process because each of them has a unique and evolving experience of inequality.
Meaningful deliberation is about offering periodic opportunities for constitutional reform, allowing
for continuous feedback, reflection, and learning.
Keywords
Affirmative action, constitutional reform, deliberative democracy, democratic legitimacy,
inequalities, political equality, substantive equality
Received: 27th January 2021; Revised version received: 23th November 2021; Accepted: 24th November
2021
Introduction
Democracies build a claim of legitimacy upon the perception that their decision-making
processes respect citizens’ political equality and political decisions receive public
approval under fair terms of political participation. Procedural fairness is fundamental for
Corresponding author:
Aris Trantidis, International Relations and Politics, University of Lincoln, Bridge House, Brayford Campus,
Lincoln LN6 7TS, UK.
Email: Atrantidis@lincoln.ac.uk
1074899POL0010.1177/02633957221074899PoliticsTrantidis
research-article2022
Article
454 Politics 44(3)
a democracy because democratic systems ask citizens to accept decisions even when they
disagree with them. At a basic conceptual level, procedural fairness elicits respect for the
fundamental idea of citizens’ political equality, meaning that the decision-making process
should not privilege some citizens and disadvantage others, for instance, by not consider-
ing their concerns, grievances or ideas for political and social change.
Nevertheless, the very meaning of political equality is contested amid criticisms that
point to structures, institutions and biased beliefs that generate and perpetuate social ine-
qualities (Anderson, 1999, 2010; Kolodny, 2014; Lippert-Rasmussen, 2020; Young,
1989, 1990). These criticisms often entangle arguments on substantive justice with opin-
ions on procedural fairness, claiming that unfair social conditions create unfair terms of
political participation which, in turn, reproduce these social conditions. Most notably, in
debates over affirmative action, formal procedural equality is criticised for systematically
disadvantaging certain groups such as women and minorities. Affirmative action is pro-
posed not just as a remedy for these disadvantages but, more profoundly, as a requirement
of justice (Anderson, 2010; Brian, 2005; Beauchamp, 2002; Lippert-Rasmussen, 2020;
Mason, 2006). However, there are opposing views that criticise forms of affirmative
action such as electoral quotas for introducing reverse discrimination (Hook, 2002;
Pojman, 2014).1
When views on procedural fairness are entangled with views on substantive equality,
a dispute over the meaning of equality emerges that could challenge democracy’s claim
of legitimacy founded on the notions of political equality and procedural fairness.
Procedural fairness depends on the extent to which citizens believe that the rules treat
them as equals and allow their views to be taken into account impartially, that is, without
the process itself predetermining the outcome by favouring some preferences or out-
comes against others. Social inequalities, by rendering the meaning of political equality
contestable, strike at this normative foundation of democracy as it becomes difficult for a
political system to claim that there is a fundamental agreement on a set of decision-
making rules as procedurally fair. This dispute calls for public rethinking of the meaning
of political equality that must debate procedural fairness. Deliberative democrats call this
process meta-deliberation (Bohman, 1996: 65; Fraser, 2003: 44–45; Holdo, 2015: 1112,
2020a; Landwehr, 2010, 2015; Stevenson and Dryzek, 2012; Thompson, 2008). The
problem is that arguments that entangle views of procedural fairness with views of sub-
stantive equality make it equally difficult to agree on the procedural terms that would
guide this process too.
With this article, I argue that, while it seems impossible to achieve a once-and-for-all
foundational agreement on which democratic rules and procedures are fair, as in the form
of a Rawlsian contract on basic principles of justice, democratic legitimation should be
seen as a process of continually rebuilding and renewing a legitimacy claim in view of
inevitably intersubjective and evolving perceptions of fairness. Such process of renewal
requires an inclusive and meaningful deliberative process that will also accommodate
radical rethinking on existing institutions and norms and, potentially, enact substantial
reforms of democracy’s baseline rules and procedures. Inspired by the work of Anne
Phillips (1995, 2007) on equal presence and multiculturalism, I propose a process of con-
stitutional meta-deliberation that must consider all perspectives on equality, including
group-specific perspectives, in a process of continual reflection. I justify this position on
the grounds that each individual has a unique and evolving experience of inequalities and
disadvantage and could form a distinct and evolving opinion about them and about the
meaning of political equality. This constitutional form of meta-deliberation, I argue, could
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
