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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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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 17 June 2021

A Little Less Conversation, a Little More Action

A Little Less Conversation, a Little More Action

(p.101) 5 A Little Less Conversation, a Little More Action
Where Our Protection Lies

Dimitrios Kyritsis

Oxford University Press

This chapter criticizes constitutional dialogue theories, which treat constitutional review as an iteration in a dialogic process. Such theories are often invoked to explain the moral appeal of so-called weak constitutional review, which reserves the ‘last word’ on constitutional matters for the legislature. It is argued that constitutional dialogue theories stress the discursive element of judicial decisions at the expense of their authoritative impact and thus cannot adequately account for the limits we tend to impose on the courts’ reviewing power. More fundamentally, they overlook that political orders are not there to discover moral truth. First and foremost, they go well when they do not wrong us. Accordingly, constitutional review is not judged primarily by its discursive value, its ability to enhance public—and more specifically legislative—deliberation, but rather by its ability to thwart infringements of our fundamental rights.

Keywords:   constitutional dialogue, weak constitutional review, legislative override, declaration of incompatibility, rights-consistent interpretation, authoritativeness, finality, discursive impact

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