Overcoming Judicial Supremacy through Constitutional Amendment: Some Critical Reflections*

Abstract

AbstractThis paper critically examines the proposal to overcome the judicial definition of fundamental rights by using constitutional amendment procedures. Authors known as “political constitutionalists” have advocated weak‐form judicial review as an alternative to the constitutional practice currently prevailing in liberal democracies. The proposal under consideration here seeks to achieve this alternative by making constitutional amendment as easy as possible, i.e., through minimal constitutional rigidity. The discussion begins by questioning the idea of adopting institutional design as a suitable criterion for rating a judicial review system as “strong” or “weak.” Then the alleged relevance of constitutional amendment in the specification of constitutional rights is called into question. Lastly, the paper reaches a double conclusion. On the one hand, minimal constitutional rigidity is not an alternative to prevailing constitutional practice, but a more collaborative version of the same practice; on the other hand, minimal constitutional rigidity only represents a genuine alternative design when it is part of a model (“strong popular sovereignty”) aimed at overcoming the current constitutionalist paradigm.