Reason Without Vote: The Representative and Majoritarian Function of Constitutional Courts

Abstract

This essay starts with a brief overview of some of the changes and new developments in constitutional law in the past decades. It also provides a brief account of the ascent of the Judiciary in most democracies, as well as the expansion of constitutional jurisdiction throughout the world. The main topic of the essay, however, are the two roles played by constitutional courts in our days: the counter-majoritarian role, which is widely studied by constitutional theory, and the representative role of such courts, a subject that has been neglected by constitutional scholars in general, with few exceptions. The argument is developed in a cosmopolitan fashion, drawing from authors and experiences from different parts of the world; however, it uses the court of a new democracy – the Supreme Court of Brazil – as a case study. In polities in which the legislature struggles with a major democratic deficit – and until it can be properly overcome – it may be the case, under certain circumstances, that it will be up to the Supreme Court to be responsive to unattended social demands presented as legal claims of rights. Furthermore, in some exceptional situations, the Court may need to play the part of an enlightened vanguard, pushing history forward. At the conclusion, though, the essay emphasizes the idea of institutional dialogues as the best path between legislative omission and judicial supremacy.

Keywords: Constitutional law, Constitutional Courts and Supreme Courts, Judicial Review, Democratic legitimacy, Roles of Courts, Constitutional dialogues