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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: 24 October 2021

Constitutional Review in Representative Democracy

Constitutional Review in Representative Democracy

Chapter:
(p.121) 6 Constitutional Review in Representative Democracy
Source:
Where Our Protection Lies
Author(s):

Dimitrios Kyritsis

Publisher:
Oxford University Press
DOI:10.1093/oso/9780199672257.003.0006

The legitimacy of constitutional review of legislation depends on a proper appreciation of the contributions of courts and the legislature in the project of governing. This chapter argues that legislatures rightly have the initiative in this project, because the role of legislators is structured so as to enable them to combine the demands of popular support and moral innovation. This, and not political equality, is the value of democratic representation. Giving legislatures the initiative, however, does not mean giving them the last word. In addition, legislative initiative comes with grave risks, which institutional design must try to avert. By virtue of their independence, courts are well-equipped to check those risks. At the same time, judicial supervision is compatible with the legislature’s valuable contribution. Whether under a system of strong or weak constitutional review, courts can remain subsidiary to the legislature.

Keywords:   popular accountability, deliberative distance, popular support, moral innovation, judicial independence, subsidiarity, strong review, weak review

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