Against the Democratic Objection

Abstract

This chapter critically examines sceptical views about constitutional review of primary legislation. Sceptics argue that constitutional review is illegitimate because it negates political equality. Political equality requires that political decisions be made following procedures that give every citizen’s view equal weight. But constitutional review gives a small group of unelected officials the power to overrule the decisions of democratically accountable legislators. Against the sceptics it is argued that they ignore the significant imbalance of power that exists between elected legislators and the citizens they represent. The former have the power to decide according to their own independent judgment of what is the right thing to do. They act as trustees, not proxies, of their constituents. If we do not object to representative democracy of the kind we are familiar with, we cannot object to constitutional review in the name of political equality.