Judicial review of constitutional amendments: a legitimate defence of democracy through a counter-majoritarian power

Abstract

This paper aims at addressing a subject that according to the arguments exposed therein, conforms a subtle constitutional paradox: the conceptual tensions in the democratic principle that arise with the creation of an instrument that is as necessary as it is problematic such as the judicial review of constitutional reforms by a counter-majoritarian body (i.e., the constitutional court). In view of the impossibility to address in a uniform and universal manner the potential compatibility between this type of control and the democratic principle, we propose a gradual or blurred approach to the question, taking into consideration how each constitutional system defines the limits of constitutional amendments.