Between Facts and Norms - Contributions to a ... - Blogs Unpad

275Judiciary and Legislaturesphere as well as its cultural context and social basis. A deliberativepractice of self-legislation can develop only in the interplay between,on the one hand, the parliamentary will-formation institutionalizedin legal procedures and programmed to reach decisionsand, on the other, political opinion-formation along informalchannels of political communication. Relevant initiatives, issuesand contributions, problems and proposals come more from themargins than from the established center of the spectrum ofopinions. "So the suggestion is that the pursuit of political freedomthrough law depends on 'our' [the Supreme Court's] constantreach for inclusion of the other, of the hitherto excluded-whichin practice means bringing to legal-doctrinal presence the hithertoabsent voices of emergently self-conscious social groups."65The deliberative mode of legislation and a strict dependence ofadministrative activity on statutory guidelines are threatened just asmuch by autonomous and self.-programming bureaucracies as bythe privileged influence exerted by formally private social organizations.In the United States, however, the influence of interestgroups that implement their private aims through the governmentapparatus at the cost of the general interest is considered the realproblem, at least since the famous discussion between the Federalistsand the Antifederalists. In this classical stance against thetyranny of societal powers that violate the principle of the separationof state and society, rejuvenated republicanism, too, conceivesthe role of the constitutional court as that of a custodian ofdeliberative democracy:The American constitutional regime is built on hostility to measures thatimpose burdens or grant benefits merely because of the political powerof private groups; some public value is required for governmental action.This norm . . . . suggests, for example, that statutes that embody mereinterest-group deals should be narrowly construed. It also suggests thatcourts should develop interpretive strategies to promote deliberation ingovernment-by, for example, remanding issues involving constitutionallysensitive interests or groups for reconsideration by the legislature orby regulatory agencies when deliberation appears to have been absent.66Sunstein discusses some of the consequences that this guardianrole has for deliberative politics. He starts with review proceedingsin which the Supreme Court rejected statutes for their "discrimi-