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The democratic constitution: why Europeans should avoid American style constitutional judicial review

Bellamy, R; (2008) The democratic constitution: why Europeans should avoid American style constitutional judicial review. European Political Science , 7 (1) 9 - 20. 10.1057/palgrave.eps.2210151. Green open access

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Abstract

Understanding of the relationship between constitutionalism and democracy among legal and political philosophers reflects an idealised account of the US constitution and the nature of judicial review. This view is normatively and empirically flawed. The US constitution is built on pre-democratic assumptions and its counter-majoritarian checks and balances are largely regressive, benefitting privileged minorities over the underprivileged. By contrast, ‘actually existing democracy’, involving competing parties and majority rule, is constitutional in its process and effects, treating all with equal concern and respect, upholding rights and maintaining the rule of law. Judicial review undermines these beneficial qualities.

Type: Article
Title: The democratic constitution: why Europeans should avoid American style constitutional judicial review
Open access status: An open access version is available from UCL Discovery
DOI: 10.1057/palgrave.eps.2210151
Publisher version: http://dx.doi.org/10.1057/palgrave.eps.2210151
Language: English
Additional information: This is a post-peer-review, pre-copyedit version of an article published in European Political Science. The definitive publisher-authenticated version European Political Science (2008) 7, 9–20 is available online at: http://dx.doi.org/10.1057/palgrave.eps.2210151
Keywords: democracy, constitutions, judicial review, rights
UCL classification: UCL
UCL > Provost and Vice Provost Offices > UCL SLASH
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of S&HS
UCL > Provost and Vice Provost Offices > UCL SLASH > Faculty of S&HS > Dept of Political Science
URI: https://discovery.ucl.ac.uk/id/eprint/1359228
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