Constitutional Courts and
Deliberative Democracy
by Conrado Hübner Mendes
Contemporary democracies have granted an expansive
amount of power to unelected judges that sit in constitutional or supreme
courts. This power shift has never been easily squared with the institutional
backbones through which democracy is popularly supposed to be structured. The
best institutional translation of a 'government of the people, by the people
and for the people' is usually expressed through elections and electoral representation
in parliaments.
Judicial review of legislation has been challenged as
bypassing that common sense conception of democratic rule. The alleged
'democratic deficit' behind what courts are legally empowered to do has been
met with a variety of justifications in favour of judicial review. One common
justification claims that constitutional courts are, in comparison to elected
parliaments, much better suited for impartial deliberation and public
reason-giving. Fundamental rights would thus be better protected by that
insulated mode of decision-making. This justification has remained largely
superficial and, sometimes, too easily embraced.
This book analyses the argument that the legitimacy of
courts arises from their deliberative capacity. It examines the theory of
political deliberation and its implications for institutional design. Against
this background, it turns to constitutional review and asks whether an argument
can be made in support of judicial power on the basis of deliberative theory.