Political Constitutionalism
A Republican Defence of the Constitutionality of Democracy

This book questions the effectiveness and legitimacy of rights-based judicial review by constitutional courts.

Richard Bellamy (Author)

9780521683678, Cambridge University Press

Paperback, published 13 September 2007

282 pages
22.9 x 15.2 x 1.5 cm, 0.38 kg

'This is a complex and sometimes dense argument, which takes considerable trouble to engage with hard cases and to address potential criticisms. In particular, it constitutes a significant contribution to discussion of the institutional requirements of non-domination. Even those who disagree with Bellamy's conclusions will be challenged by his arguments, and will benefit from following his close engagement with a comprehensive range of arguments in legal theory and political philosophy, and the way in which evidence from political science is brought to bear on these debates.' Contemporary Political Thought

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.

Introduction
Part I. Legal Constitutionalism: 1. Constitutional rights and the limits of judicial review
2. The rule of law and the rule of persons
3. Constitutionalism and democracy
Part II. Political Constitutionalism: 4. The norms of political constitutionalism: non-domination and political equality
5. The forms of political constitutionalism: public reason and the balance of power
6. Bringing together norms and forms: the democratic constitution
Conclusion.

Subject Areas: Jurisprudence & philosophy of law [LAB], Political science & theory [JPA], Social & political philosophy [HPS]