Constitutionalism, Liberalism, and Democracy

Abstract

This chapter describes the tension between democratic decision-making procedures and constitutional judicial review. It shows that the liberal values that justify a democratic self-government may also vindicate some limits on majoritarian decision-making procedures, but not necessarily in the form of the current constitutional regimes. The chapter argues that constitutional courts are not a necessary feature of a liberal regime. It also acknowledges that democratic decision-making has many defects. These defects concern the fate of persistent vulnerable minorities, the tendency towards short-sightedness, a similar tendency to downplay people's rights and liberties for the sake of greater economic gains or in the force of external threats, and finally the dangers of populism and anti-liberal politics gaining ground within a democratic system. The chapter then depicts courts as essentially conservative institutions which are not — and cannot be — as counter-majoritarian as depicted by legal scholars, mainly because their legitimacy and the acceptance of their decisions depends on the people. It contends that the acceptance and efficacy of judicial review is context dependent, but that some fights still need to be fought in the political, not the legal arena.