Constitutional Adjudication and Democracy: One Voice or Many?

International Association of Law Schools Conference on Constitutional Law, September 2009

ANU College of Law Research Paper No. 10-31

7 Pages Posted: 1 Jul 2010

Date Written: September 1, 2009

Abstract

Charles Evans Hughes’ pithy remark in 1907 that ‘the Constitution is what the judges say it is’ sparked a vigorous, and probably never-ending, debate about the tension between the objective and subjective elements in judicial law-making. In contested cases of constitutional interpretation in a multi-member final appellate court, can there be one ‘right’ view, produced by the objective application of an external standard, or is the prevailing view merely the accidental consequence of the aggregation of individual subjective opinion to form a view that happens to have majority support?

Suggested Citation

Coper, Michael, Constitutional Adjudication and Democracy: One Voice or Many? (September 1, 2009). International Association of Law Schools Conference on Constitutional Law, September 2009, ANU College of Law Research Paper No. 10-31, Available at SSRN: https://ssrn.com/abstract=1633210

Michael Coper (Contact Author)

ANU College of Law ( email )

Canberra, Australian Capital Territory 0200
Australia

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