Political Constitutionalism

This book has defended democracy against judicial review. It has done so not on the grounds that democracy is more important than constitutionalism, rights or the rule of law, but because democracy embodies and upholds these values. The judicial constraint of democracy weakens its constitutional attributes, putting inferior mechanisms in their place. That is not to say that actually existing democracy is perfect and decisions made by judicial review necessarily imperfect, merely that the imperfections of the first cannot be perfected by the second. Though undeniably in need of improvement, the democratic arrangements found in the world's established working democracies are sufficient to satisfy the requirements of republican non-domination, whereas all efforts to improve on such arrangements through judicial intervention create conditions of domination. Judicial review undermines the equality of concern and respect between citizens that lies at the heart of the constitutional project and that democratic processes serve to secure.

It will be objected that I have praised a version of actually existing democracy that is currently passing out of existence. Party membership and voting are experiencing a steady if slow decline in all established democracies. Though the picture is mixed, with occasional increases in membership and turnout as well as significant variations between countries, and not yet at the crisis point regularly predicted by commentators of left and right since the 1960s, a sustained general downward trend is undeniable.