Counter-Majoritarian, Representative and Enlightened: The Roles of Constitutional Courts in Democracies

The American Journal of Comparative Law (forthcoming)

46 Pages Posted: 11 Jan 2018 Last revised: 30 Aug 2018

See all articles by Luís Roberto Barroso

Luís Roberto Barroso

Universidade do Estado do Rio de Janeiro

Date Written: September 4, 2017

Abstract

The primary purpose of this Article is to examine the roles of constitutional courts in contemporary democracies. It aims to demonstrate that such courts perform, in addition to the counter-majoritarian role traditionally recognized in constitutional theory, two other roles: representative and, occasionally, enlightened. In the construction of the argument, the essay analyzes the phenomena of the judicialization of politics and judicial activism, as well as the issue of the difficult demarcation of the border between law and politics in the complex and plural societies of today. Although it presents several examples of the constitutional experience of the United States, the Article’s conclusions are generalizable, looking at the roles of constitutional courts from the perspective of a global constitutionalism whose categories have become common practice in the democracies of the world.

Keywords: Supreme courts, Constitutional courts, Law and politics, Judicialization, Judicial activism, Judicial review, Global constitutionalism

Suggested Citation

Barroso, Luis Roberto, Counter-Majoritarian, Representative and Enlightened: The Roles of Constitutional Courts in Democracies (September 4, 2017). The American Journal of Comparative Law (forthcoming). Available at SSRN: https://ssrn.com/abstract=3096203 or http://dx.doi.org/10.2139/ssrn.3096203

Luis Roberto Barroso (Contact Author)

Universidade do Estado do Rio de Janeiro ( email )

Rua Sao Francisco Xavier, 524 - 7th floor
Rio de Janeiro, Rio de Janeiro 20559-900
Brazil
55 21 2587-7100 (Phone)

HOME PAGE: http://lrbarroso.com.br

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