Read more
This volume critically discusses therelationship between democracy and constitutionalism. It does so with a view torespond to objections raised by legal and political philosophers who aresceptical of judicial review based on the assumption that judicial review is anundemocratic institution. The book builds on earlier literature on the moraljustification of the authority of constitutional courts, and on the currentattempts to develop a system on "weak judicial review". Although different intheir approach, the chapters all focus on devising institutions, proceduresand, in a more abstract way, normative conceptions to democratizeconstitutional law. These democratizing strategies may vary from a radicalobjection to the institution of judicial review, to a more modest proposal tojustify the authority of constitutional courts in their "deliberativeperformance" or to create constitutional juries that may be more aware of acommunity's constitutional morality than constitutional courts are. The book connects abstract theoreticaldiscussions about the moral justification of constitutionalism with concreteproblems, such as the relation between constitutional adjudication anddeliberative democracy, the legitimacy of judicial review in internationalinstitutions, the need to create new institutions to democratizeconstitutionalism, the connections between philosophical conceptions andconstitutional practices, the judicial review of constitutional amendments, andthe criticism on strong judicial review.
List of contents
I Challenging and Defending JudicialReview.- 1. Randomized Judicial Review; Andrei Marmor.- 2. On the Difficulty toGround the Authority of Constitutional Courts: Can Strong Judicial Review beMorally Justified?; Thomas Bustamante.- 3. The Reasons without Vote: TheRepresentative and Majoritarian Function of Constitutional Courts; Luís RobertoBarroso.- II Constitutional Dialogues and Constitutional Deliberation.- 4.Decoupling Judicial Review From Judicial Supremacy; Stephen Gardbaum.- 5. Scopeand limits of dialogic constitutionalism; Roberto Gargarella.- 6. A Defence ofa Broader Sense of Constitutional Dialogues based on Jeremy Waldron's Criticismon Judicial Review; Bernardo Gonçalves Fernandes.- III Institutional Alternativesfor Constitutional Changes.- 7. New Institutional Mechanisms for Making ConstitutionalLaw; Mark Tushnet.- 8. Democratic Constitutional Change: AssessingInstitutional Possibilities; Christopher Zurn.- 9. The Unconstitutionality ofConstitutional Changesin Colombia: a Tension between Majoritatian andConstitutional Democracy; Gonzalo Ramírez Cleves.- IV Constitutional Promisesand Democratic Participation.- 10. Is there such thing as a radical constitution?;Vera Karam de Chueiri.- 11. Judicial reference to community values - A pointertowards constitutional juries?; Eric Ghosh.- V Legal Theory and ConstitutionalInterpretation.- 12. Common Law Constitutionalism and the Written Constitution;Wil Waluchow and Katharina Stevens.- 13. On how law is not like chess - Dworkinand the theory of conceptual types; Ronaldo Porto Macedo Júnior.
Summary
This volume critically discusses the
relationship between democracy and constitutionalism. It does so with a view to
respond to objections raised by legal and political philosophers who are
sceptical of judicial review based on the assumption that judicial review is an
undemocratic institution. The book builds on earlier literature on the moral
justification of the authority of constitutional courts, and on the current
attempts to develop a system on “weak judicial review”. Although different in
their approach, the chapters all focus on devising institutions, procedures
and, in a more abstract way, normative conceptions to democratize
constitutional law. These democratizing strategies may vary from a radical
objection to the institution of judicial review, to a more modest proposal to
justify the authority of constitutional courts in their “deliberative
performance” or to create constitutional juries that may be more aware of a
community’s constitutional morality than constitutional courts are. The book connects abstract theoretical
discussions about the moral justification of constitutionalism with concrete
problems, such as the relation between constitutional adjudication and
deliberative democracy, the legitimacy of judicial review in international
institutions, the need to create new institutions to democratize
constitutionalism, the connections between philosophical conceptions and
constitutional practices, the judicial review of constitutional amendments, and
the criticism on strong judicial review.
