Judicial review by constitutional courts is often presented as a
necessary supplement to democracy. This book questions its
effectiveness and legitimacy. Drawing on the republican tradition,
Richard Bellamy argues that the democratic mechanisms of open
elections between competing parties and decision-making by majority
rule offer superior and sufficient methods for upholding rights and
the rule of law. The absence of popular accountability renders
judicial review a form of arbitrary rule which lacks the incentive
structure democracy provides to ensure rulers treat the ruled with
equal concern and respect. Rights based judicial review undermines
the constitutionality of democracy. Its counter-majoritarian bias
promotes privileged against unprivileged minorities, while its
legalism and focus on individual cases distort public debate.
Rather than constraining democracy with written constitutions and
greater judicial oversight, attention should be paid to improving
democratic processes through such measures as reformed electoral
systems and enhanced parliamentary scrutiny.
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