Networked Participation in Election 2008, A Precusor to More Public Participation in Politics?
posted by Danielle Citron
During the recent election, individuals Facebooked, Twittered, texted, emailed, and YouTubed about the candidates, a trend that many consider a renewed commitment to public participation in government. Since the election, President-elect Obama’s staff has sought to keep that momentum alive, sending frequent emails to supporters to enlist their participation in passing legislation through grassroots efforts. In a recent article, Karen Czapanskiy and Rashida Manjoo ask an intriguing question in the wake of our reinvigorated electorate: should mechanisms exist that would require give and take between legislative leaders and the public? In other words, should legislators be required to faciliate public participation to enhance the legitimacy, accuracy, and accountability of its laws? In The Right of Public Participation in the Law-Making Process and the Role of Legislature in the Promotion of This Right, Czapanskiy and Manjoo explore a recent decision by the South African Constitutional Court mandating the involvement of citizens in the law-making process and the valuable lessons for other democratic nations that the decision provides.
Here is the abstract:
In 2006, the South African Constitutional Court found a constitutional right to participate in the legislative process in the case of Doctors for Life, Case CCT 12/05 (decided 17 August 2006). In this article, we argue that, first, legislation is better when legislators are required to invite and attend to public input, and, second, citizenship is better when legislators are required to invite and attend to public input. Doctors for Life puts South Africa on the road to improving both legislation and citizenship. In the United States, this road is largely untraveled. While rejecting traditional representative democracy as an adequate expression of political participation, Doctors for Life does not go as far as it could in terms of entrenching public participation in the South African legislative process. Nonetheless, it offers a model of an interim place that the United States can consider. The case also offers a model for international human rights exploration in an area of underdeveloped theory, especially in regard to enhancing respect and dignity as aspects of citizenship in a democratic state.
January 4, 2009 at 11:33 am
Posted in: Culture, Politics
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Responses (2)
Orin Kerr - January 4, 2009 at 11:55 am
Interestingly, the paper seems to assume that a legal decision that imposes a theoretical obligation will have a direct and profound positive impact with few if any unintended consequences. I think that’s an empirical question, though, and my sense is that our experience with similar court-imposed procedural obligations in areas like administrative law leave a lot of room for skepticism. Just my 2 cents, anyway.
Karen Czapanskiy - January 6, 2009 at 9:29 am
Thanks for your comment. Your concern about unintended consequences was something we considered deeply, particularly since the principal plaintiff in the South African case is an anti-abortion rights advocacy group and neither of us share that position. We also compare the ruling to the usual admin. law processes. We still concluded that the decision could lead to improving the political process through public participation. I look forward to hearing more from you after you’ve had a chance to read the paper.
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