The Democratic Constitution: Why Europeans should Avoid American Style Constitutional Judicial Review

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 pre-democratic assumptions and its countermajoritarian checks and balances are largely regressive, benefiting 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.Key words Democracy, constitutions, judicial review, rights 2 Running head: The democratic constitution Does democracy need a constitution? The increasingly dominant view is that it does.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, 32-35). 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 Tony Blair. As she puts it:'In a human rights world … responsibility for a value-based substantive commitment to democracy rests in large part on judges … [J]udges in constitutional democracies are set aside as the guardians of individual rights … [and] afforded the opportunity and duty to do justice for all citizens by reliance on universal standards of decency and humaneness … in a way that teaches citizens and government about the ethical responsibilities of being participants in a true democracy ' (Booth, 2005).

Civil Society Organisations and the Aarhus Convention in Court: Judicialisation From Below in Scotland?

“…However, their analysis ignores the corporate interests that have long benefited from access to the court, particularly at the stage of policy implementation where contestation may be more diffuse. Hirschl (2004) and Bellamy (2008) argue that, compared to legislatures, unaccountable courts CIVIL SOCIETY ORGANISATIONS AND THE AARHUS CONVENTION IN COURT tend to do more to serve the interests of powerful corporate actors and vested interests. Critics of judicialisation argue that a solution is to discourage policy debates in the courts.…”

Eurolegalism and Democracy

“…Moreover, in the eyes of many critics, rule by judges, or ‘juristocracy’ as Hirschl (2004) labels it, is not value neutral. Hirschl (2004) and Bellamy (2008) argue that, compared to legislatures, unaccountable courts tend to do more to serve the interests of powerful economic actors, privileged minorities and vested interests. In the EU context, critics might argue that the rise of Eurolegalism as a mode of governance will undermine democracy in the regulatory process and contribute to the EU's so‐called ‘democratic deficit’.…”

Judicialização dos direitos econômicos, sociais e culturais no âmbito nacional: uma análise socio-jurídica

“…Two other philosophical and legal objections are more persistent and arguably provide the basis for determining the limits or the shape of ESC rights adjudication. The first is the contention that adjudication is democratically illegitimate, a claim not necessarily confined to socio-economic rights (WALDRON, 2006;BELLAMY, 2008). Judicial review of human rights, particularly the striking down of legislation, remains controversial in some quarters.…”

“…Some point to the weakness of courts in enforcing their judgments -and every jurisdiction seems to have at least one notable case that falls in this category. Other critiques are more political in nature -with claims that litigation can distract attention from building new coalitions for social change and that the middle classes are more adept and successful at using the courts to enforce ESC rights than the poor (BELLAMY, 2008;ROSENBERG, 1991). Determining the actual impact of litigation in practice is a complex exercise as it is dependent on the selection of the benchmark for success, the isolation of different causes and comparison with alternative strategies.…”