Judicial Review, Constitutional Juries and Civic Constitutional Fora: Rights, Democracy and Law

Abstract

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.

Keywords: constitutional amendment, constitutional juries, deliberative democracy, judicial review