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2 - Constitutionalism and the Counterpopular Dilemma

Published online by Cambridge University Press:  06 July 2023

Jacob Eisler
Jacob Eisler
Affiliation:
University of Southampton
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Summary

This chapter evaluates whether any accounts of general constitutionalism can reconcile judicial review with popular autonomy. It evaluates three prevalent approaches: the Constitution as a fixed contract among the people (originalism) that includes judicial review; the Constitution as a fluid, dynamic instrument (living constitutionalism); and instrumental institutionalist accounts. Despite their insights and merits, none of these accounts can explain how the power to shape democratic process can be legitimately allocated to a nonaccountable, apolitical actor while fully recognizing the normative weight of democratic self-determination.

Keywords

Constitutional LawOriginalismLiving ConstitutionalismDworkinInstitutionalismElyLockups
Type
Chapter
Information
The Law of Freedom
The Supreme Court and Democracy
 , pp. 51 - 89
Publisher: Cambridge University Press
Print publication year: 2023

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