Constitutional Courts in Defective Democracies

23 Pages Posted: 12 Aug 2021 Last revised: 22 Oct 2021

Date Written: August 10, 2021


Constitutional courts exercising the power to invalidate the outputs of elected bodies can strengthen the liberal democratic character of the polities they serve in three main ways: by reinforcing representation; protecting human rights, particularly those of members of socially disadvantaged groups; and promoting the political system’s stability over time. These functions may be especially important in defective democracies. This Essay expounds the utility of constitutional review through the example of the United States, which has a democracy that is defective in various respects, including its allocation of disproportionate political power to a racially identifiable elite. Even so, constitutional review is no panacea. In the face of the extraordinary threats unleashed by a former President and his authoritarian movement, jurists in the United States will need to display great courage to have a chance of preserving the nation’s democratic order.

Keywords: Constitutional Court, Elected Bodies, Liberal, Democratic, politics, human rights, socially disadvantaged groups, political systems, defective democracies, political power, disproportionate, racially identifiable elite, constitutional review, authoritarian movement, jurists

Suggested Citation

Dorf, Michael C., Constitutional Courts in Defective Democracies (August 10, 2021). Cornell Legal Studies Research Paper No. 21-25, Virginia Journal of International Law Online, Vol. 62, No. 47, 2021, Available at SSRN: or

Michael C. Dorf (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States


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