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Deliberative Democracy and the Institutions of Judicial Review

$57.99 (C)

  • Date Published: September 2009
  • availability: Available
  • format: Paperback
  • isbn: 9780521119801

$ 57.99 (C)

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About the Authors
  • In this book, Christopher F. Zurn shows why a normative theory of deliberative democratic constitutionalism yields the best understanding of the legitimacy of constitutional review. He further argues that this function should be institutionalized in a complex, multi-location structure including not only independent constitutional courts but also legislative and executive self-review that would enable interbranch constitutional dialogue and constitutional amendment through deliberative civic constitutional forums. Drawing on sustained critical analyses of diverse pluralist and deliberative democratic arguments concerning the legitimacy of judicial review, Zurn concludes that constitutional review is necessary to ensure the procedural requirements for legitimate democratic self-rule through deliberative cooperation. Claiming that pure normative theory is not sufficient to settle issues of institutional design, Zurn draws on empirical and comparative research to propose reformed institutions of constitutional review that encourage the development of fundamental law as an ongoing project of democratic deliberation and decision.

    • Thorough survey of different accounts of judicial review put forward by deliberative democratic theorists
    • Proposes innovative institutional reforms for the system of constitutional elaboration in constitutional democracies
    • Integrates research from political philosophy, jurisprudence, comparative political science of institutions, and legal studies
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    Reviews & endorsements

    "Zurn is at his best and most interesting when engaged in exegetical analysis of the thought of others who have written on judicial review. Their work is treated fairly, engaged sympathetically, and analyzed perceptively." - James A. Gardner, University at Buffalo Law School, The Law and Politics Book Review

    "This book is imaginatively conceived, well written and researched, and tightly argued."
    - Christian Barry, Australian National University, Ethics

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    Product details

    • Date Published: September 2009
    • format: Paperback
    • isbn: 9780521119801
    • length: 376 pages
    • dimensions: 229 x 152 x 21 mm
    • weight: 0.55kg
    • availability: Available
  • Table of Contents

    Part I. Introduction:
    1. An old chestnut is actually two
    2. Pathologies of ad hoc triangulation
    3. Functions and institutions
    Part II. Majoritarian Democracy and Minoritarian Constitutionalism:
    4. Judicial review as substantially legitimate protection of minority rights
    5. Judicial review as procedurally legitimate protection of democracy
    6. Moving beyond aggregative majoritarianism and minoritarian constitutionalism
    Part III. From Majoritarian to Deliberative Theories of Constitutional Democracy:
    7. Deliberative democracy: four axes of analysis
    8. Constitutionalism: four central elements
    9. Constitutional democracy?
    Part IV. Deliberative Democracy and Substantive Constitutionalism:
    10. Keepers of the substantive flame of American exceptionalism
    11. Guardians of the moral law in the forum of principle
    12. Are substantialist defenses of judicial review self-defeating?
    Part V. Disagreement and the Constitution of Democracy:
    13. Democratic precommitment to judicial review: Freeman
    14. Deliberative majoritarianism and the paternalism of judicial review: Waldron
    15. Upshot: we need a theory of democratic constitutionalism
    Part VI. The Seducements of Juristic Discourse as Democratic Deliberation:
    16. A division of labor between juristic deliberation and populist aggregation?
    17. Actual juristic discourse in the United States system of constitutional adjudication
    18. Legal principles and moral-political reasoning
    Part VII. Constitutionalism as the Procedural Structuring of Deliberative Democracy:
    19. A provisional summary: criteria for an adequate theory of constitutional review
    20. Guardians of the conditions of procedural legitimacy: Habermas
    Part VIII. The Institutions of Constitutional Review I: Design Problems and Judicial Review:
    21. The problems of designing institutions of constitutional review
    22. Independent constitutional courts in a concentrated review system
    Part IX. The Institutions of Constitutional Review II: Horizontal Dispersal and Vertical Empowerment:
    23. Self-review panels in the legislature and regulatory agencies
    24. Mechanisms for inter-branch debate and decisional dispersal
    25. Easing formal amendability requirements
    26. Establishing civic constitutional fora.

  • Author

    Christopher F. Zurn, University of Kentucky

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