The limits of the countermajoritarian objection to the judicial review

Abstract

Through different mechanisms, such as a certain degree of entrenchment of rights and judicial review for guaranteeing constitutional supremacy, constitutions work as constraints on decision-making powers of the majorities. Thus, many scholars consider that both entrenchment and judicial review are countermajoritarian devices, i.e., they undermine the democratic ideal of self-government. In this paper I will focus on the arguments against judicial review. The thesis to be defended is that in order to offer an adequate answer to the normative question concerning whether –or to what extent– judges in a democracy may legitimately exert judicial review, an analysis of the scope and limits of the countermajoritarian objection is needed, exploring the links between its main arguments and both the different conceptions of interpretation and the singularities of institutional designs.