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Democratizing Constitutional Law

Part of the Law and Philosophy Library Book Series (volume 113)

Editors: Bustamante, Thomas; Gonçalves Fernandes, Bernardo

DOI: 10.1007/978-3-319-28371-5

ISBN: 978-3-319-28369-2

Publisher: Springer International Publishing - Springer Journals

Apr 20, 2016

1 - 10 of 14 Chapters

Available

Introduction

Bustamante, Thomas; Fernandes, Bernardo Gonçalves

Pages: 1 –10

[The problem of constitutionalism and the legitimacy of its core institutions, in particular the judicial review of democratically-enacted legislation, is probably as old as the invention of the idea of a constitutional democracy in the beginning on the nineteenth century. The debate about the...
Available

Randomized Judicial Review

Marmor, Andrei

Pages: 13 –28

[One of the main arguments in support of constitutional judicial review points to the need to curtail the legal and political power of majority rule instantiated by democratic legislative institutions. This article aims to challenge the counter majoritarian argument for judicial review by showing...
Available

On the Difficulty to Ground the Authority of Constitutional Courts: Can Strong Judicial Review Be Morally Justified?

Bustamante, Thomas

Pages: 29 –69

[A theory of authority has important implications for justifying the institutions of judicial review. In this paper, I attempt to take part in the current debates about the authority of constitutional courts, with a view to showing some of the difficulties of systems of strong judicial review in...
Available

Reason Without Vote: The Representative and Majoritarian Function of Constitutional Courts

Barroso, Luís Roberto

Pages: 71 –90

[This essay starts with a brief overview of some of the changes and new developments in constitutional law in the past decades. It also provides a brief account of the ascent of the Judiciary in most democracies, as well as the expansion of constitutional jurisdiction throughout the world. The...
Available

Decoupling Judicial Review from Judicial Supremacy

Gardbaum, Stephen

Pages: 93 –118

[In previous work, I have characterized one of the two constitutive features of the new general model of constitutionalism adopted over the last 30 years in Canada, New Zealand, the United Kingdom, and two sub-national units in Australia as decoupling judicial review from judicial supremacy. In...
Available

Scope and Limits of Dialogic Constitutionalism

Gargarella, Roberto

Pages: 119 –146

[This chapter takes up the debate that is going on in contemporary legal and political philosophy under the rubric of dialogic constitutionalism, dialogic justice or dialogic judicial review. These issues are studied with special emphasis on historical considerations about the separation of...
Available

A Defence of a Broader Sense of Constitutional Dialogues Based on Jeremy Waldron’s Criticism on Judicial Review

Fernandes, Bernardo Gonçalves

Pages: 147 –164

[This chapter begins with a discussion of the debate about judicial supremacy versus parliamentary supremacy, on the basis of Jeremy Waldron’s criticism on judicial review; it then takes a critical stand on Waldron’s theses, on the basis of the theory of constitutional (institutional) dialogues....
Available

New Institutional Mechanisms for Making Constitutional Law

Tushnet, Mark

Pages: 167 –183

[Traditionally, two general methods have been used to make constitutional law. The first involves creating a constitutional text, and has been done by constituent assemblies convened especially for that purpose or by legislatures either proposing replacement constitutions or more limited...
Available

Democratic Constitutional Change: Assessing Institutional Possibilities

Zurn, Christopher F.

Pages: 185 –212

[This paper develops a normative framework for both conceptualizing and assessing various institutional possibilities for democratic modes of constitutional change, with special attention to the recent ferment of constitutional experimentation. The paper’s basic methodological orientation is...
Available

The Unconstitutionality of Constitutional Amendments in Colombia: The Tension Between Majoritarian Democracy and Constitutional Democracy

Ramirez-Cleves, Gonzalo Andres

Pages: 213 –229

[This chapter analyses the “Constitutional replacement doctrine”, developed by the Colombian Constitutional Court in order to enable the judicial review of amendments to the Colombian Constitution of 1991 on substantial grounds. This doctrine is particularly relevant for comparative lawyers...

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