When the Supreme Court strikes down a law passed by elected representatives, whose voice truly matters more -nine appointed judges or millions of voters? This tension, known as the counter-majoritarian difficulty, has challenged democracies for generations. But what if technology could help us reimagine this relationship entirely?
In recent years, the concept of Crowdlaw has been used to refer to a tech-based form of citizen participation that allows ordinary citizens to engage directly in legislative and administrative processes through digital technologies. Despite its appeal, less attention has been paid to fostering citizen participation in the judiciary’s decision-making processes. While legislatures are increasingly opening their doors to citizen input through technology, our constitutional courts (broadly understood to include both constitutional courts in the strict sense and supreme courts that exercise constitutional review, such as the United States Supreme Court) remain largely isolated from the public they ultimately serve. This digital divide presents both a challenge and an opportunity. Here, I introduce the concept of an Augmented Constitutional Court—one that actively bridges this gap by engaging citizens in constitutional review through innovative technological approaches.
Constitutional courts could use AI to incorporate citizen participation through three key technological innovations: information platforms that make constitutional law accessible to all citizens; deliberative digital forums that enable diverse public input on constitutional questions; and collaborative interpretation mechanisms that allow citizens and experts to contribute directly to judicial decision-making. Together, such approaches could transform how constitutional justice operates in democratic societies.
Framing the Issue: Constitutional Courts and Democracy
Constitutional courts function as conversation initiators, enabling ordinary citizens to spark constitutional discussions and thereby reinforcing constitutional democracy.
Constitutional courts have long been challenged by an objection known among legal and political theorists as the counter-majoritarian difficulty. This critique argues that constitutional courts, which have the power to invalidate legislation enacted by representative institutions such as parliaments or congresses, suffer from a serious democratic legitimacy deficit, as they lack the democratic credentials required to override the will of elected majorities.
This critique, advanced by scholars such as Jeremy Waldron and Richard Bellamy, is undeniably powerful and should not be dismissed outright. However, it is not beyond reply. One of the most compelling recent defenses of constitutional courts comes from the Northwestern political philosopher Cristina Lafont. According to Lafont, constitutional courts need not be viewed as antithetical to democracy. On the contrary, they can be understood as institutions that play a crucial role in constitutional democracies by giving every citizen the opportunity to contest legislative decisions that they believe violate their fundamental rights and interests. From this perspective, constitutional courts function as conversation initiators, enabling ordinary citizens to spark constitutional discussions and thereby reinforcing constitutional democracy.
Lafont’s normative reframing of constitutional courts is intriguing, but it faces serious empirical challenges. In practice, constitutional courts rarely allow ordinary citizens (beyond the parties to the case or interest groups writing amicus briefs) to challenge legislation directly; rather, they restrict this possibility to other state institutions. Moreover, even courts with open-access rules often impose stringent argumentative burdens that make it difficult—if not impossible—for laypersons to successfully present a case. A recent study of the Colombian Constitutional Court, widely praised as an exemplary open-access institution, found that such barriers significantly limit effective citizen participation in constitutional justice.
None of this means that we should abandon a democratic reinterpretation of constitutional courts, as the one suggested by Lafont. On the contrary, technological advances in recent decades offer a unique opportunity to expand our institutional imagination and rethink the role that constitutional courts can play in democracy. Moreover, it should be noted that the counter-majoritarian difficulty is not merely an abstract theoretical concern; it has real-world implications, as it can fuel distrust in constitutional adjudication and generate political backlash against judicial review. So it is of crucial importance to devote our best efforts to think how digital technologies can help us reframe the ways in which we think about the relationship between constitutional courts, legislatures, and citizen participation.
Towards an Augmented Constitutional Court
We can envision an Augmented Constitutional Court that leverages technology to integrate citizens into constitutional-judicial decision-making.
Digital technologies provide a promising avenue for enhancing citizen participation in constitutional courts. Drawing on insights from scholars like José Luis Martí and Beth Noveck, we can envision an Augmented Constitutional Court that leverages technology to integrate citizens into constitutional-judicial decision-making. To structure citizen participation effectively, an Augmented Constitutional Court could engage the public in three distinct ways: by providing accessible legal information, fostering large-scale deliberation, and enabling collaboration through direct contributions to judicial interpretation. Each of these approaches plays a unique role in bridging the gap between constitutional courts and the public.
1. Information: An Expanded Online Constitutional Court
A major barrier to citizen engagement in constitutional review is the lack of accessible legal information. Inspired by Richard Susskind’s proposal for online courts, constitutional courts could develop interactive, user-friendly digital platforms that provide basic legal education on judicial review. These platforms could guide citizens through the process and requirements of challenging legislation.
At a more advanced level, artificial intelligence tools could help potential litigants assess the legal viability of their claims, offering precedent analysis and procedural guidance. Additionally, such a system could generate periodic reports for constitutional judges, highlighting emerging concerns from citizens and identifying legislative provisions generating the most debate. By reducing information asymmetries, these tools could significantly enhance citizen participation in constitutional justice.
While accessible legal information empowers citizens to understand constitutional law, meaningful participation requires spaces for discussion. Digital deliberation platforms would allow citizens to engage in structured debates about constitutional issues.
2. Deliberation: Large-Scale Online Citizen Deliberation
Once a judicial review process is initiated, constitutional courts could facilitate structured online deliberations where citizens contribute to discussions on constitutional issues. Current mechanisms, such as public hearings, are valuable but often limited in scale and accessibility.
Inspired by Helene Landemore’s vision of technologically enhanced mass deliberation through iterative deliberative mini-publics, digital tools –particularly AI-driven platforms such as “The Habermas Machine”– could enhance these discussions by tracking argument patterns, summarizing debates, finding common ground between diverse viewpoints, and ensuring balanced participation. AI-powered moderation tools could prevent domination by a few voices, ensuring more equitable and representative discussions. By integrating online deliberation with in-person hearings, courts could foster richer and more inclusive constitutional debates.
While deliberation allows citizens to voice their perspectives, participation can go even further. Through structured mechanisms, courts can invite citizens not just to debate constitutional questions, but to actively contribute to their interpretation.
3. Collaboration: Citizen-Driven Constitutional Interpretation
Beyond deliberation, constitutional courts could embrace a model of collaborative constitutional interpretation. Inspired by the idea of collaborative democracy, courts could invite experts and informed citizens to contribute to constitutional adjudication through structured mechanisms, such as collaborative amicus curiae briefs.
By leveraging digital platforms, courts could expand participation to a broader range of stakeholders, including academics, civil society organizations, and affected individuals. These contributions could enhance the epistemic quality of judicial decision-making while reinforcing the democratic legitimacy of constitutional courts.
With the implementation of these three levels of engagement—informing, deliberating, and collaborating—constitutional courts can evolve from isolated institutions into dynamic, participatory spaces that better reflect the democratic values they are meant to uphold. The following image illustrates the Augmented Constitutional Court and its three operating mechanisms.
Created with Claude
A Hypothetical Example
Consider a constitutional democracy with a constitution that protects “the right to life” but does not specify when life begins. This ambiguity opens the door for legislative interpretations that may be contested by different societal groups, highlighting the crucial role of citizen participation in constitutional adjudication. By involving the public in discussions on such issues, an Augmented Constitutional Court could help ensure that diverse perspectives are considered in the decision-making process. In this polity, a legislative majority passes a law banning abortion, arguing that it is necessary to protect the constitutional right to life. This law is then challenged before the constitutional court.
In an Augmented Constitutional Court, information mechanisms would ensure that citizens have access to clear legal explanations about the constitutional right to life and past rulings on similar issues. AI tools could analyze legal precedents and provide accessible summaries to the public.
Deliberation would take place through an online platform where citizens could discuss the constitutional interpretation of the right to life. Moderation tools would prevent one-sided discussions and ensure that diverse perspectives are represented.
Collaboration would allow experts, legal scholars, and civil society organizations to submit well-researched arguments and interpretations, assisting the court in considering a broader array of perspectives. Through this approach, the final ruling would emerge from an inclusive and participatory process rather than being solely dictated by judicial elites.
Conclusion: Reimagining Constitutional Justice in the Digital Age
The counter-majoritarian difficulty will likely remain an enduring challenge for constitutional courts. However, by harnessing digital technologies, these institutions can transform their relationship with citizens, shifting from closed, elite-driven bodies to more participatory and transparent institutions. An Augmented Constitutional Court, powered by information-sharing platforms, online deliberation, and collaborative interpretation mechanisms, could help bridge the democratic gap between constitutional adjudication and the broader public. In doing so, constitutional courts could better fulfill their role as guardians of democracy—not just through legal reasoning, but by actively engaging the citizens they serve.
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This post is based on a book chapter I recently published, where I outline the Ph.D. thesis I am currently writing. For those interested, the chapter (in Spanish) can be downloaded here (pages 165-183). I can send an English version of the chapter by email on request.
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I’m aware that a democratic innovation like the one proposed here may carry significant risks. There is already an extensive body of literature discussing the potential dangers AI tools may pose to democratic representation, deliberation, and adjudication. In this post, I focused on the positive potential of digital technologies for democracy and constitutional adjudication. However, a comprehensive discussion of these issues would necessarily need to address the aforementioned risks.
