Can a Deliberative Constitutional Court Enhance Democracy?

Contemporary democracies ascribe to constitutional courts, among other things, the pivotal role of protecting and implementing rights against the background of electoral politics. That task was arguably played, over the past decades, with varying degrees of success. At the same time, these courts have gradually occupied a major political space. This has generated a significant revival of the age-old question about the democratic legitimacy of constitutional review, an arrangement that empowers unelected judges to control decisions by parliamentary representatives. Continue reading

What Judges Don’t Say – Judicial Strategy and Constitutional Theory

Constitutional courts have become an almost universal solution to a perennial anxiety of democratic regimes, promising to reign in the excesses of majoritarian politics. Yet, however insulated from other branches of government courts are intended to be, their power is not exercised in a politics-free zone, and concerns over their political effectiveness, if not bare survival, accompany constitutional courts everywhere. Continue reading