Comparative Political Process Theory
18 International Journal of Constitutional Law (2020, Forthcoming)
44 Pages Posted: 10 May 2020 Last revised: 16 May 2020
Date Written: 2020
What, if anything, do recent constitutional court decisions requiring a legislature to create a customized presidential impeachment procedure, invalidating a government's prorogation of parliament, rejecting the disbanding of an independent anti-corruption unit, and striking down legislation for inadequate deliberation, have in common? They are all examples of courts protecting the political processes of representative democracy against threats or failures. Yet none of these various types of failure appear in the work that is synonymous with a political process theory of judicial review: John Hart Ely's Democracy and Distrust. This article argues that when we look beyond the United States and at the comparative context generally, a political process theory has a great deal of relevance and application to constitutional law and courts around the world, both descriptively and normatively. Especially now when the structures and processes of representative democracy are under assault in so many places. However, for comparative purposes, Ely's account takes too narrow a view of what types of political process failures exist and are of concern, and what types of judicial review or other protective mechanisms they may call for. It is also an interpretive theory of one system, but what is needed in the comparative context is a broader, normative theory of the role of courts and other actors in protecting democratic politics. Accordingly, suitably expanded and adapted, a comparative political process theory can make a valuable contribution to the field of comparative constitutional law. This article seeks to explore and further develop such a theory.
Keywords: political process theory, John Hart Ely, representative democracy, democratic process, process-substance distinction, populism, democratic erosion
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