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Constitutional Courts and Democratic ValuesA European Perspective$
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Victor Ferreres Comella

Print publication date: 2009

Print ISBN-13: 9780300148671

Published to Yale Scholarship Online: October 2013

DOI: 10.12987/yale/9780300148671.001.0001

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The Democratic Objection to Constitutional Review

The Democratic Objection to Constitutional Review

(p.86) Chapter Eight The Democratic Objection to Constitutional Review
Constitutional Courts and Democratic Values

Víctor Ferreres Comella

Yale University Press

This chapter focuses on the “ counter-majoritarian difficulty,” which contends that, from a democratic point of view, it is not legitimate for courts to invalidate statutes that a popularly elected assembly has enacted. Even if one is in favor of judicial review, it should be acknowledged that there is an important connection between the democratic principle and the enactment of a statute by the majority of a popularly elected parliament. Democracy is conceptually tied to the existence of a procedure that gives citizens an equal opportunity to participate with their voice and their vote in the discussion and approval of collective decisions. As Jeremy Waldron has stressed, majority rule has an intrinsic value to the extent that it counts all the votes equally and does not prefer a particular outcome over another.

Keywords:   counter-majoritarian difficulty, statutes, popularly elected assembly, judicial review, democratic principle, parliament, Jeremy Waldron

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