Judicial review and the defence of (democratic) constitutionality: a critique of the argument from disagreement

Abstract

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.