Deliberative Democracy and Constitutional Review

Abstract

This paper re-examines the traditional democratic objection to judicial review as an instance of anti-democratic paternalism, within the context of newer ‘deliberative’ theories of constitutional democracy. Using a framework of two cross-cutting distinctions between aggregative versus deliberative democratic processes and between substantive versus procedural legitimacy, it argues that Habermas’s account of the function of constitutional review of legislation is superior to those offered by Ely, Perry, and Dworkin. However, Habermas’s proposal for a judicial institutionalization of review with a broad set of duties needs to be modified in the light of theoretical commitments to participatory deliberative processes and procedural legitimacy.

Keywords: Deliberative Democracy, Judicial Review, Constitutionalism