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

Theoria: A Journal of Social and Political Theory, Forthcoming

47 Pages Posted: 20 May 2011

See all articles by Christopher F. Zurn

Christopher F. Zurn

University of Massachusetts Boston - Department of Philosophy

Date Written: May 18, 2011

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

Suggested Citation

Zurn, Christopher F., Judicial Review, Constitutional Juries and Civic Constitutional Fora: Rights, Democracy and Law (May 18, 2011). Theoria: A Journal of Social and Political Theory, Forthcoming . Available at SSRN: https://ssrn.com/abstract=1845840

Christopher F. Zurn (Contact Author)

University of Massachusetts Boston - Department of Philosophy ( email )

Wheatley Hall 05-017
100 Morrissey Blvd.
Boston, MA 02125
United States

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