The Democratic Constitution: Why Europeans should Avoid American Style Constitutional Judicial Review
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Abstract Understanding of the relationship between constitutionalism and democracy among legal and political philosophers reflects an idealised account of the US constitution and the nature of judicial review. This view is normatively and empirically flawed. The US constitution is built on predemocratic assumptions and its counter-majoritarian checks and balances are largely regressive, benefitting privileged minorities over the underprivileged. By contrast, ‘actually existing democracy’, involving competing parties and majority rule, is constitutional in its process and effects, treating all with equal concern and respect, upholding rights and maintaining the rule of law. Judicial review undermines these beneficial qualities.
Keywords
D
democracy; constitutions; judicial review; rights
oes democracy need a constitution? The increasingly dominant view is that it does.1 Constitutions are said to enshrine and secure the rights central to a democratic society. According to this account, a constitution is a written document, superior to ordinary legislation and entrenched against legislative change, justiciable and constitutive of the legal and political system (Raz, 1998: 153–4). It is the constitution, not participation in
democratic politics per se, that offers the basis for citizens to be treated in a democratic way as deserving of equal concern and respect (Dworkin, 1996: 24, 32–5). The electorate and politicians may engage in a democratic process, but they do not always embrace democratic values. The defence of these belongs to the constitution and its judicial guardians. This view has been neatly summarised by Cherie Booth, speaking as a distinguished QC rather than the wife of the european political science: 7 2008
(9 – 20) & 2008 European Consortium for Political Research. 1680-4333/08 $30 www.palgrave-journals.com/eps
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‘misconceptions about both constitutionalism and democracy y stem from the idealisation of the Constitution of the United States by distinguished American legal and political philosophers.’
then Prime Minister Tony Blair. As she puts it: In a human rights world y responsibility for a value-based substantive commitment to democracy rests in large part on judges y [J]udges in constitutional democracies are set aside as the guardians of individual rights y [and] afforded the opportunity and duty to do justice for all citizens by reliance on universal standards of decency and humaneness y in a way that teaches citizens and government about the ethical responsibilities of being participants in a true democracy (Booth, 2005). I believe both the concern over democracy and the proposed remedy to be largely misconceived. The one overlooks the constitutional role and achievements of democratic politics, while the other places an impossible task upon the judiciary. To a large degree, the misconceptions about both constitutionalism and democracy underlying this mistaken analysis stem from the idealisation of the Constitution of the United States by distinguished American legal and political phil
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