Book contents
- Frontmatter
- Contents
- Acknowledgments
- 1 Introduction
- 2 Majoritarian Democracy and Minoritarian Constitutionalism
- 3 From Majoritarian to Deliberative Theories of Constitutional Democracy
- 4 Deliberative Democracy and Substantive Constitutionalism
- 5 Disagreement and the Constitution of Democracy
- 6 The Seducements of Juristic Discourse as Democratic Deliberation
- 7 Constitutionalism as the Procedural Structuring of Deliberative Democracy
- 8 The Institutions of Constitutional Review I: Design Problems and Judicial Review
- 9 The Institutions of Constitutional Review II: Horizontal Dispersal and Vertical Empowerment
- Bibliography
- Index
- Table of Cases
2 - Majoritarian Democracy and Minoritarian Constitutionalism
Published online by Cambridge University Press: 18 July 2009
- Frontmatter
- Contents
- Acknowledgments
- 1 Introduction
- 2 Majoritarian Democracy and Minoritarian Constitutionalism
- 3 From Majoritarian to Deliberative Theories of Constitutional Democracy
- 4 Deliberative Democracy and Substantive Constitutionalism
- 5 Disagreement and the Constitution of Democracy
- 6 The Seducements of Juristic Discourse as Democratic Deliberation
- 7 Constitutionalism as the Procedural Structuring of Deliberative Democracy
- 8 The Institutions of Constitutional Review I: Design Problems and Judicial Review
- 9 The Institutions of Constitutional Review II: Horizontal Dispersal and Vertical Empowerment
- Bibliography
- Index
- Table of Cases
Summary
Before turning to the accounts of judicial review that ensue from deliberative democratic conceptions of constitutional democracy in later chapters, it will help to get clear about the various moves made in debates about judicial review under the terms of an older model of constitutional democracy, a model I will characterize in terms of the uncomfortable amalgamation of a majoritarian conception of democracy and a minoritarian conception of constitutionalism. The main point of this overview is to motivate the move beyond the standard amalgam conception of constitutional democracy by indicating some of the normative and conceptual deficiencies it evinces when considering judicial review. However, this overview will also indicate two of the main fault lines between different justifications of judicial review, fault lines that continue to be important in debates amongst deliberative democrats over judicial review and will reappear throughout the later chapters. One the one hand, there is a fundamental cleavage amongst theorists concerning how to understand the legitimacy of constitutional democracy; between, as I will explain, substantialist and proceduralist conceptions of legitimacy. On the other hand, there are differences over how properly to conceive of democratic decision-making processes: as aggregating prepolitical interests, or as sifting and evaluating competing reasons and opinions. Thus, although the deliberative democratic arguments for and against judicial review considered later reject, to varying degrees, the central elements of the majoritarian democracy–minoritarian constitutionalism conception, they can still be usefully characterized in terms of how they approach the questions of political legitimacy and political process.
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- Publisher: Cambridge University PressPrint publication year: 2007