Judicial review and the defence of (democratic) constitutionality: a critique of the argument from disagreement
Menendez, A. J.
Fossum, J. E.
University of Oslo
7 - 42
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Hope, reluctance or fear: the democratic consequences of the case law of the European Court of justice
The aim of this paper is to offer a defence of the practice of constitutional review from the point of view of a theory of democratic legitimacy. I will develop this defence by engaging with the strongest criticism to date of the practice of constitutional review: Jeremy Waldron’s and Richard Bellamy’s argument that constitutional review violates the principle of democratic equality, respect for which is a necessary condition of legitimate political decision-taking in a pluralist society characterized by reasonable disagreement about rights.