Democratizing Constitutional Law: Perspectives on Legal Theory and the Legitimacy of Constitutionalism (Law and Philosophy Library, 113)

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. -- Back Cover. Introduction / Thomas Bustamante And Bernardo Gonçalves Fernandes -- Randomized Judicial Review / Andrei Marmor -- On The Difficulty To Ground The Authority Of Constitutional Courts: Can Strong Judicial Review Be Morally Justified? / Thomas Bustamante -- Reason Without Vote: The Representative And Majoritarian Function Of Constitutional Courts / Luís Roberto Barroso -- Decoupling Judicial Review From Judicial Supremacy / Stephen Gardbaum -- Scope And Limits Of Dialogic Constitutionalism / Roberto Gargarella -- A Defence Of A Broader Sense Of Constitutional Dialogues Based On Jeremy Waldron’s Criticism On Judicial Review / Bernardo Gonçalves Fernandes -- New Institutional Mechanisms For Making Constitutional Law / Mark Tushnet -- Democratic Constitutional Change: Assessing Institutional Possibilities / Christopher F.zurn -- The Unconstitutionality Of Constitutional Amendments In Colombia: The Tension Between Majoritarian Democracy And Constitutional Democracy / Gonzalo Andres Ramirez-cleves -- Is There Such Thing As A Radical Constitution? / Vera Karam Chueiri -- Judicial Reference To Community Values: A Pointer Towards Constitutional Juries? / Eric Ghosh -- Common Law Constitutionalism And The Written Constitution / Wil J. Waluchow And Katharina Stevens -- On How Law Is Not Like Chess – Dworkin And The Theory Of Conceptual Types / Ronaldo Porto Macedo Jr. Thomas Bustamante, Bernardo Gonçalves Fernandes, Editors. Includes Bibliographical References And Index. Contents 6 About the Authors 8 Contributors 8 Biographies 9 Chapter 1: Introduction 13 References 21 Part I: Challenging and Defending Judicial Review 23 Chapter 2: Randomized Judicial Review 24 2.1 Introduction 24 2.2 The Randomized Hypothetical 26 2.3 Objections to RJR 30 2.4 Constitutional Principles and Incentives 33 2.5 Counter Majoritarianism 36 2.6 Conclusion 38 References 39 Chapter 3: On the Difficulty to Ground the Authority of Constitutional Courts: Can Strong Judicial Review Be Morally Justified? 40 3.1 Introduction 41 3.2 The Nature of the Authority of Constitutional Courts 42 3.2.1 The Mainstream Understanding of the Nature of Legal Authority 42 3.2.2 Off the Mainstream: Greenberg and Dworkin on the Authority of Law 44 3.2.3 The Argumentative Character of the Law 49 3.2.4 On the Authority of Constitutional Courts 52 3.3 The Justification of Authority and the Burdens of Constitutional Courts 58 3.3.1 The Normal Justification Thesis 59 3.3.2 The Democratic Justification Thesis 61 3.3.3 On the Difficulty to Ground the Authority of Constitutional Courts 64 3.3.4 On the Principles Underlying Democracy and the Legitimacy of Strong Judicial Review 66 3.3.5 Dworkin’s Instrumental Defense of Judicial Review and the Authority of Weak Constitutional Courts 68 3.4 Conclusion: On the Circumstances of Judicial Review and the Strong Systems of Judicial Review 74 References 78 Chapter 4: Reason Without Vote: The Representative and Majoritarian Function of Constitutional Courts 81 4.1 Introduction 81 4.2 The New Constitutional Law and the Ascent of the Judiciary 82 4.3 The Expansion of the Constitutional Jurisdiction and Its Various Roles 84 4.3.1 The Counter-Majoritarian Role of the Supreme Courts 85 4.3.2 The Crisis of Political Representation 87 4.3.3 The Representative Role of the Brazilian Federal Supreme Court 88 4.4 Conclusion 98 References 99 Part II: Constitutional Dialogues and Constitutional Deliberation 101 Chapter 5: Decoupling Judicial Review from Judicial Supremacy 102 5.1 Introduction 102 5.2 What Judicial Review Without Judicial Supremacy Means (and Does Not Mean) 103 5.3 The Case for Judicial Review Without Judicial Supremacy 110 5.3.1 The Strengths and Weaknesses of the Two Traditional Models 110 5.3.2 A Normatively Appealing Third Way 117 5.4 Conclusion 125 References 126 Chapter 6: Scope and Limits of Dialogic Constitutionalism 128 6.1 The Coming of Dialogic Constitutionalism 128 6.2 Constitutional Dialogue and Deliberative Democracy 131 6.3 Constitutional Dialogue and Judicial Review 133 6.4 Structural Problems: The System of Checks and Balances as an Exclusive Machinery 134 6.5 The System of Checks and Balances and the Promise of an “Armed Truce” 136 6.5.1 Containing Social Warfare 137 6.5.2 Thwarting the Ideal of “Government by the People” 139 6.5.3 Democracy 142 6.5.4 Latin America 143 6.5.5 Summing Up 144 6.6 Legal Alienation/“We the People” Outside of the Constitution 146 6.7 Conclusions 150 References 151 Chapter 7: A Defence of a Broader Sense of Constitutional Dialogues Based on Jeremy Waldron’s Criticism on Judicial Review 156 7.1 Introduction 156 7.2 Judicial Supremacy Versus Parliamentary Sovereignty: Jeremy Waldron’s Criticism to Judicial Review 158 7.3 Waldron’s Deficit: Constitutional Dialogues and Their Different Perspectives 166 7.4 After All, What Is a Dialogue? 170 7.5 Conclusion 171 References 173 Part III: Institutional Alternatives for Constitutional Changes 174 Chapter 8: New Institutional Mechanisms for Making Constitutional Law 175 8.1 Introduction 175 8.2 What We Know 176 8.2.1 Constituent Assemblies 176 8.2.2 Constitutional Courts 179 8.3 Recent Innovations in Making Constitutional Law 181 8.3.1 Iceland’s Failed Exercise in Crowd-Sourced Constitution Making 182 8.3.2 The Brazilian Public Hearings 187 8.4 Conclusion 190 References 191 Chapter 9: Democratic Constitutional Change: Assessing Institutional Possibilities 192 9.1 Introduction 193 9.2 Ideals of Deliberative Democratic Constitutionalism 194 9.2.1 Basics of the Normative Framework 194 9.2.2 Co-authorship 195 9.2.3 Proceduralism 195 9.2.4 Entailments of Proceduralism 196 9.2.5 Democratic Constitutional Democracy 198 9.2.6 Structured Deliberation 198 9.3 Institutional Possibilities for Democratic Constitutional Change 200 9.3.1 Direct Democratic Constitutional Change 200 9.3.2 Legislative Constitutional Change and Operationalizability 202 9.3.3 Agency Problems and Structural Independence 202 9.3.4 Entrenchments and Democratic Co-authorship 204 9.3.5 Judicial Interpretation and Political Equality 205 9.3.6 Veto Players and Inclusive Sensitivity 207 9.3.7 Constituent Assemblies and Reasons-Responsiveness 210 9.4 Objections and Open Questions 215 References 217 Chapter 10: The Unconstitutionality of Constitutional Amendments in Colombia: The Tension Between Majoritarian Democracy and Constitutional Democracy 220 10.1 Introduction 220 10.2 Constitutional Democracy as a Way to Overcome the Risks of Majoritarian Democracy 223 10.3 Implementing the “Substitution Doctrine” as a Method for Protecting Constitutional Democracy Against Majoritarian Democracy 227 10.4 General Conclusions 234 References 235 Colombian Constitutional Court Decisions 235 Part IV: Constitutional Promises and Democratic Participation 237 Chapter 11: Is There Such Thing as a Radical Constitution? 238 11.1 Introduction 239 11.2 Brief Excursus: Political Action and Constitution 239 11.3 Constituent Power and Constituted Power: The Constitution as Promise and the Constitution as Effectiveness 241 11.4 Constituent Power and Sovereignty 243 11.5 Democracy and Constitutionalism 247 11.6 Radical Constitution: A Possibility? 248 References 250 Chapter 12: Judicial Reference to Community Values – A Pointer Towards Constitutional Juries? 252 12.1 Introduction 252 12.2 The Community Values Approach 254 12.2.1 Examples from the United States and Canada 254 12.2.2 Criticisms 257 12.2.3 Democratic Theory 261 12.3 Deliberative Polls and Constitutional Juries 267 12.3.1 Deliberative Polls and the Community Values Approach 267 12.3.2 Constitutional Juries 269 12.4 Conclusion 273 References 274 Part V: Legal Theory and Constitutional Interpretation 277 Chapter 13: Common Law Constitutionalism and the Written Constitution 278 13.1 Introduction 278 13.2 Strauss’ Common Law Constitutionalism and the Place of the Written Constitution 281 13.2.1 The Common Law Approach 281 13.2.2 The Written Constitution 284 13.3 The Stabilizing Function of a Written Constitution 285 13.3.1 Speech Communities 286 13.3.2 Constitutional Law and Speech Communities 287 13.3.3 Problems 290 13.3.4 The Written Constitution: A Link Between Speech-Communities 291 13.4 Conclusion 293 References 293 Cases Cited 294 Chapter 14: On How Law Is Not Like Chess – Dworkin and the Theory of Conceptual Types 295 14.1 The Contemporary Methodological Debate 296 14.2 Dworkin and the Theory of Interpretation 297 14.2.1 From Chess to Courtesy: A new Model for Law 298 14.2.2 Law as an Interpretive Practice 305 14.2.3 Interpretation According to Dworkin: The Point of Practices and the Grammars of Concepts 307 14.2.4 Stages of Interpretation 316 14.2.5 Practical Intent and Forms of Life 319 14.3 Conclusion 323 References 324 Index 327 La 4e de couverture indique :"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." 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 ĺlweak judicial reviewĺl. 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 ĺldeliberative performanceĺl or to create constitutional juries that may be more aware of a communityĺls 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 Front Matter....Pages i-xi Introduction....Pages 1-10 Front Matter....Pages 11-11 Randomized Judicial Review....Pages 13-28 On the Difficulty to Ground the Authority of Constitutional Courts: Can Strong Judicial Review Be Morally Justified?....Pages 29-69 Reason Without Vote: The Representative and Majoritarian Function of Constitutional Courts....Pages 71-90 Front Matter....Pages 91-91 Decoupling Judicial Review from Judicial Supremacy....Pages 93-118 Scope and Limits of Dialogic Constitutionalism....Pages 119-146 A Defence of a Broader Sense of Constitutional Dialogues Based on Jeremy Waldron’s Criticism on Judicial Review....Pages 147-164 Front Matter....Pages 165-165 New Institutional Mechanisms for Making Constitutional Law....Pages 167-183 Democratic Constitutional Change: Assessing Institutional Possibilities....Pages 185-212 The Unconstitutionality of Constitutional Amendments in Colombia: The Tension Between Majoritarian Democracy and Constitutional Democracy....Pages 213-229 Front Matter....Pages 231-231 Is There Such Thing as a Radical Constitution?....Pages 233-246 Judicial Reference to Community Values – A Pointer Towards Constitutional Juries?....Pages 247-271 Front Matter....Pages 273-273 Common Law Constitutionalism and the Written Constitution....Pages 275-291 On How Law Is Not Like Chess – Dworkin and the Theory of Conceptual Types....Pages 293-324 Back Matter....Pages 325-328