Deliberative constitutionalism and judicial review

Abstract

Deliberative constitutionalism is an emerging field that combines constitutional theory – and its emphasis on legal limits to political power – with deliberative democratic theory – and its idea of political deliberation as the source of democratic legitimacy. This combination creates a new framework to address questions of legitimacy that arise in constitutional democracies. The article contributes to this growing area of research by exploring its potential to address the legitimacy of judicial review. First, the article argues that this potential lies in the integration of constitutional theory with a systemic approach to deliberative democracy and the nested idea of a deliberative system. Second, the article draws on this integration to account for the legitimacy of judicial review as an institution embedded in – and shaped by – a deliberative, representative, system.