Is it All About the Last Word? Deliberative Separation of Powers 1

Abstract

The normative debate about the legitimacy of judicial review seems to be at a stage of argumentative exhaustion. Despite the sensation of fatigue and the continuous circular reproduction of the same old arguments, it is still at the forefront of constitutional theory. The bulk of this debate is invariably framed by the following question: can unelected and unaccountable judges have the last word upon the meaning of the constitution and overrule the acts of elected legislators? This article raises the question of whether this is all what democracy entails, as far as institutional design is concerned. To put it in a less rhetorical way, it investigates what else is at stake when we talk about democratic legitimacy of constitutional review and collective decision-making. By portraying a broader picture, I try to grasp how to measure the proper weight that the concern with last word should play in a theory of constitutional democracy and judicial review of legislation.

Keywords: democracy and constitutionalism, judicial review of legislation, constitutional courts, separation of powers, last word