Theoria

The theme of this special issue of Theoria is the relationship between constitutions, constitutional review and democracy. The four essays that make up the issue advance new arguments, offer fresh perspectives and make innovative proposals in response to a cluster of questions: what institutional arrangement of constitutional review best realizes the ideals of democracy? How does rightsbased judicial review fare, relative to constitutional review carried out by other branches of government, from the perspectives of democratic legitimacy and epistemic competence? Are courts more likely to uphold individual rights than legislatures? If democracy requires the participation of citizens in ordinary political decision making, should citizens be permitted to participate in the periodic revision of formal constitutions?

This essay defends judicial review on procedural grounds by showing that it is an integral part of American democracy. Critics who object to judicial review using counter-majoritarian and epistemic arguments raise important concerns that should shape our understanding of the Supreme Court. Nevertheless, critics often fail to account for the formal and informal mechanisms that overcome these difficulties. Critics also fail to show that other branches of government could use the power of Constitutional interpretation more responsibly. By defending judicial review in the American context, this essay demonstrates that judicial review is not inherently undemocratic.

Theory argues that rights-based judicial review fails because it does not have popular support. However, examining actual events in battles over freedom of speech, privacy and civil rights demonstrates that this theory often fails when applied. Those arrested during the First World War in America often only received redress through administrative agencies. Civil rights protestors' experiences prove that the federal courts were the only ones generally to protect their rights, and that the legislatures failed to act. Similarly, judicial review increased the freedom of the press during the 1960s, which in turn boosted the civil rights movement. Finally, it was the courts which helped Americans to realize their right to privacy. Included in that right to privacy was the right for people to marry regardless of their race. Overall, courts and administrative agencies, particularly at the federal level, do a better job at protecting rights than legislatures.

The relationship between democracy and constitutions is a long and fractious one. Those who lean towards the constitutionalist side have tended to perceive democracy as a threat to political order and the preservation of important values, whereas those who take a more democratist stance tend to treat constitutions as elite hindrances to popular rule as much as anything else. In this paper, we will give the constitutionalist thesis a broader theoretical and political scrutiny. By way of explanation, we will address and recommend the possibilities and problems for putting into practical operation such an anti-constitutionalist stance; the recent experience of the U.S. State of California offers itself as a good forcing-ground for these ideas. In short, from a democratic standpoint, the challenge for the citizenry is not so much about defining the values of constitutions, but constitutions whose change is outside the scope of popular decision making, supposed to exclusively take place through judicial interpretation or through an amendment formula designed precisely to make change difficult and unlikely. Too often, constitutions place checks and limits on democratic participation in the name of some other set of vaunted truths or elite-favouring values. For the strong democrat, it is formal constitutions and their institutional paraphernalia that do more to inhibit and dull democracy's emancipatory potential than to nurture and fulfil it.

This paper argues that, according to a specific conception of the ideals of constitutional democracy - deliberative democratic constitutionalism - the proper function of constitutional review is to ensure that constitutional procedures are protected and followed in the ordinary democratic production of law, since the ultimate warrant for the legitimacy of democratic decisions can only be that they have been produced according to procedures that warrant the expectation of increased rationality and reasonability. It also contends that three desiderata for the institutionalization of the function of constitutional review follow from this conception: structural independence, democratic sensitivity and the maintenance of legal integrity. Finally, evaluating three broadly different ways of institutionalizing constitutional review - solely in appellate courts, in deliberative constitutional juries of ordinary citizens and in a combined system of constitutional courts and civic constitutional amendment fora - it argues that the third arrangement would perform best at collectively fulfilling the sometimes antithetical desiderata.