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Where Our Protection LiesSeparation of Powers and Constitutional Review$
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Dimitrios Kyritsis

Print publication date: 2017

Print ISBN-13: 9780199672257

Published to Oxford Scholarship Online: September 2017

DOI: 10.1093/oso/9780199672257.001.0001

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Against the Democratic Objection

Against the Democratic Objection

(p.81) 4 Against the Democratic Objection
Where Our Protection Lies

Dimitrios Kyritsis

Oxford University Press

This chapter critically examines sceptical views about constitutional review of primary legislation. Sceptics argue that constitutional review is illegitimate because it negates political equality. Political equality requires that political decisions be made following procedures that give every citizen’s view equal weight. But constitutional review gives a small group of unelected officials the power to overrule the decisions of democratically accountable legislators. Against the sceptics it is argued that they ignore the significant imbalance of power that exists between elected legislators and the citizens they represent. The former have the power to decide according to their own independent judgment of what is the right thing to do. They act as trustees, not proxies, of their constituents. If we do not object to representative democracy of the kind we are familiar with, we cannot object to constitutional review in the name of political equality.

Keywords:   Jeremy Waldron, Richard Bellamy, political equality, moral disagreement, majoritarianism, democratic representation, delegates, trustees

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