Republicans, Rights, and Constitutions: Is Judicial Review Compatible with Republican Self-Government?

Abstract

Abstract This chapter argues that constitutional judicial review can be understood as forming a part of republican self-government, even if greater emphasis is placed on citizen participation than other positions. It begins by arguing that, rather than the two conceptions of freedom as non-domination and as self-government leading to two opposed accounts of republican government, these are in practice mutually complementary dimensions of freedom. Moreover, the idea of republican political autonomy accommodates a particular conception of rights. It entails an institutional framework that requires participatory institutions and multiple public spheres of deliberation, rather than focusing on a representative legislative assembly. These institutions include judicial review, which can be seen not only as defending the basis of republican self-government but as part of the process of self-government itself.