Constitutional Change Through Deliberation
The idea of the deliberative constitution is thus contrasted with the factual constitution preferred by the legal positivists as the ground of law. The basic question that the deliberative constitution asks of us is how to live together as equal and self-legislating agents under mutually agreeable terms. Constitutional law is the detailed answer we give to this fundamental question. A community of equals needs public principles as well as common institutions that can offer the assurance that each individual will stay free and equal within the law. Our civic power rises above our various disagreements and disputes and allows us to settle our claims fairly under public institutions. This civic power requires that the law be intelligible and public, that it should be applied by an impartial body of officials, and that it must include substantive guarantees of fundamental rights, of fair opportunity of political participation. It requires a constitution as higher law.
P. Eleftheriadis, 'Constitutional Change Through Deliberation' in R. Levy, H. Kong, G. Orr, & J. King (Eds.), The Cambridge Handbook of Deliberative Constitutionalism (Cambridge: Cambridge University Press, 2018) pp. 191-202.