¹ See e.g. Dworkin, R., Freedom’s Law: The Moral Reading of the American Constitution (Harvard University Press 1996)Google Scholar ; Eisgruber, C.L., Constitutional Self-Government (Harvard University Press 2001)CrossRefGoogle Scholar ; Sager, L.G.. Justice in Plainclothes: A Theory of American Constitutional Practice (Yale University Press 2004)Google Scholar .

² See e.g. Kramer, L.D., The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press 2004)Google Scholar ; Tushnet, M., Taking the Constitution Away from the Courts (Princeton University Press 1999)Google Scholar ; Waldron, J., Law and Disagreement (Oxford University Press 1999)CrossRefGoogle Scholar .

³ Bellamy, R., Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge University Press 2010)Google Scholar .

⁴ Tushnet, M., ‘Alternative Forms of Judicial Review’, 101 Michigan Law Review (2003) p. 2781 CrossRefGoogle Scholar .

⁵ It must be noted that the British system of judicial review is much more complex than this. It may even be misleading to characterise the British system as ‘weak judicial review’ due to certain other elements, such as the expansive scope for interpretation of legislation and the role of the European Court of Human Rights. See Kavanagh, A., ‘What’s so weak about “weak-form review”? The case of the UK Human Rights Act 1998’, 13 International Journal of Constitutional Law (2015) p. 1008 CrossRefGoogle Scholar .

⁶ Waldron, J., ‘The Core of the Case Against Judicial Review’, 115 The Yale Law Journal (2006) p. 1346 CrossRefGoogle Scholar .

⁷ Waldron, supra n. 6, p. 1354.

⁸ Pettit, P., Republicanism: A Theory of Freedom and Government (Oxford University Press 1997)Google Scholar , esp. Chapter 6. Although Pettit is more sympathetic to judicial review, he is not unequivocally in favour of the institution; it may be, he hypothesises, that judicial review ‘work[s] for ill ... in being overcautious and overcensorious of electoral and parliamentary choice’: Pettit, P., ‘Democracy, Electoral and Contestatory’, in I. Shapiro and S. Macedo (eds.), NOMOS XLII: Designing Democratic Institutions (New York University Press 2000) p. 105 Google Scholar at p. 133.

⁹ P. Rosanvallon, Democratic Legitimacy: Impartiality, Reflexivity, Proximity, trans. A. Goldhammer (Princeton University Press 2011).

¹⁰ Stephen Gardbaum recently argued for seriously considering the alternative of weak judicial review, which he calls the new Commonwealth model. He argues that ‘whilst maintaining democratic legitimacy through the legal power of the final word, [the new Commonwealth model] provides a more secure, comprehensive and pluralistic scheme of rights protection’, as it ‘promises to enhance the quality of legislative rights debate’: Gardbaum, S, The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge University Press 2013) p. 75–76 CrossRefGoogle Scholar .

¹¹ Bellamy, supra n. 3, p. 3.

¹² Bellamy, supra n. 3, p. 21. See also Waldron, supra n. 2, p. 102ff.

¹³ Rawls, J., Political Liberalism (Columbia University Press 1993) p. 54–58 Google Scholar .

¹⁴ As Waldron argues, we ‘can recognize the existence of disagreement on matters of rights and justice ... without staking the meta-ethical claim that there is no fact of the matter about the issue that the participants are discussing’: Waldron, supra n. 2, p. 244. Even if there is an objective answer, people still disagree about what that answer is. Compare Waldron’s argument that the distinction between moral realism and moral anti-realism is not relevant to the debate on judicial review: Waldron, supra n. 2, p. 164-187.

¹⁵ Bellamy, supra n. 3, p. 30.

¹⁶ Bellamy, supra n. 3, p. 225.

¹⁷ Bellamy, supra n. 3, p. 41.

¹⁸ This is generally though not necessarily the case. See J.I. Colón Rios, ‘The Counter-Majoritarian Difficulty and the Road not Taken: Democratizing Amendment Rules’, 25 Canadian Journal of Law and Jurisprudence (2012) p. 53, for an argument for the removal of the supermajority requirement. This strengthening of legislative power to assuage the fears of the opponents of judicial review can be considered the alternative strategy to the weakening of judicial power in weak judicial review. It is worth noting, however, that relaxing amendment procedures negates the value of a constitution in entrenching a particular (democratic) procedure, safeguarding democracy against small or transient majorities with anti-democratic tendencies.

¹⁹ Bellamy, supra n. 3, p. 43.

²⁰ Bellamy, supra n. 3, p. 44.

²¹ Bellamy, supra n. 3, p. 149.

²² Bellamy, supra n. 3, p. 151, emphasis added. See also Pettit (1997), supra n. 8, p. 52-66.

²³ Bellamy, supra n. 3, p. 165.

²⁴ Bellamy, supra n. 3, p. 196.

²⁵ Bellamy, supra n. 3, p. 214. Compare Waldron’s argument that the right to participate in decision-making procedures is not in conflict with other rights but, rather, remarkably appropriate when citizens disagree about those other rights. There is, he argues, ‘something unpleasantly inappropriate and disrespectful about the view that questions about rights are too hard or too important to be left to the right-bearers themselves to determine’: Waldron, supra n. 2, p. 252.

²⁶ This does not mean that Bellamy believes that courts should be allowed to judge the democratic process to ensure its legitimacy, as John Hart Ely famously argued. See Ely, J.H., Democracy and Distrust: A Theory of Judicial Review (Harvard University Press 1980)Google Scholar . Bellamy maintains that ‘an imperfect democratic procedure through which citizens have some chance of having their say can be reasonably preferred to one that has fewer democratic credentials’: Bellamy, supra n. 3, p. 140. In evaluating (and improving) democracy, therefore, even flawed democratic processes are to be preferred over courts. Waldron makes a similar point, arguing that ‘there is always a loss to democracy when a view about the conditions of democracy is imposed by a non-democratic institution, even when the view is correct and its imposition improves the democracy’: Waldron, supra n. 2, p. 302.

²⁷ Bellamy, supra n. 3, p. 226.

²⁸ Bellamy’s distrust of constitutional provisions leads him to adopt a mechanism of reciprocal power, the very mechanism that Pettit rejects as a means to achieve non-domination. Pettit believes that, though it may play a subordinate role, there is ‘very little reason to be attracted to the strategy of reciprocal power as a general means of advancing people’s freedom as non-domination’: Pettit (1997), supra n. 8, p. 95.

²⁹ Bellamy, supra n. 3, p. 238. This is especially true of multi-party democracies, yet Bellamy holds that the parties in a two-party democracy are similarly coalitions of different groups.

³⁰ Bellamy, supra n. 3, p. 205.

³¹ Bellamy, supra n. 3, p. 193.

³² Bellamy, supra n. 3, p. 259.

³³ Bellamy, supra n. 3, p. 210.

³⁴ P. Rosanvallon, Counter-Democracy: Politics in an Age of Distrust, trans. A. Goldhammer (Cambridge University Press 2008) p. 179.

³⁵ Rosanvallon, supra n. 34, p. 181.

³⁶ Rosanvallon, supra n. 34, p. 228.

³⁷ Note that this term by no means refers to anti-democratic tendencies. Rather, the term denotes the ways in which democratic politics takes place beyond traditional electoral politics. Rosanvallon’s analysis is directly relevant for anti-democratic tendencies, however, as he argues that populism is the pathological form of ‘counter-democracy’, radicalising its three aspects of oversight, prevention, and judgment.

³⁸ Rosanvallon, supra n. 9, p. 14, emphasis in the original.

³⁹ Rosanvallon, supra n. 9, p. 69-71.

⁴⁰ Removing policy questions from ordinary politics may actually fuel populism when these issues are perceived to be beyond democratic control. Oversight may therefore be especially prone to radicalisation. See also C. Pinelli, ‘The Populist Challenge to Constitutional Democracy’, 7 EuConst (2011) p. 5 at p. 12-14.

⁴¹ Rosanvallon, supra n. 9, p. 191.

⁴² Rosanvallon, supra n. 9, p. 123.

⁴³ Rosanvallon, supra n. 9, p. 132.

⁴⁴ Rosanvallon, supra n. 9, p. 133.

⁴⁵ Rosanvallon, supra n. 9, p. 134, emphasis in the original.

⁴⁶ Note that it is not the only institution that corresponds to this kind of legitimacy. Rosanvallon mentions civil society organisations and social movements as well. These, however, are not elaborated upon.

⁴⁷ Rosanvallon, supra n. 9, p. 141.

⁴⁸ Rosanvallon, supra n. 9, p. 143.

⁴⁹ Rosanvallon, supra n. 9, p. 144.

⁵⁰ Rosanvallon, supra n. 9, p. 146.

⁵¹ Rosanvallon, supra n. 9, p. 146-47.

⁵² Rosanvallon, supra n. 9, p. 219.

⁵³ Bellamy, supra n. 3, p. 210.

⁵⁴ Rosanvallon, supra n. 34, p. 256. For a critique of Rosanvallon on this point, see Urbinati, N., ‘Unpolitical Democracy’, 38 Political Theory (2010) p. 65 CrossRefGoogle Scholar .

⁵⁵ Rosanvallon, supra n. 34, p. 226. Such reinterpretation by judges may also affect constitutional law. In India, constitutional amendments require review by the judiciary, whereas the Supreme Court can reinterpret existing provisions without analogous review by parliament. For those seeking constitutional change, therefore, the judiciary is deemed more effective than parliament. See S. Rajagopalan, ‘Constitutional Change: A Public Choice Analysis’, in S. Choudhry et al (eds.), The Oxford Handbook of the Indian Constitution (Oxford University Press 2016) p. 127.

⁵⁶ Rosanvallon, supra n. 9, p. 141. On the significance of legislatures having the ‘final word’ in weak judicial review as a third model of constitutionalism, distinct from both judicial supremacy and legislative supremacy, see Gardbaum, supra n. 10.

⁵⁷ Bellamy, supra n. 3, p. 48.

⁵⁸ Kavanagh, supra n. 5, p. 1022.

⁵⁹ Kavanagh, supra n. 5, p. 1019.

⁶⁰ Bellamy, supra n. 3, p. 210-221.

⁶¹ See Kavanagh, supra n. 5, p. 1023-1028; see also Hiebert, J.L., ‘Parliamentary Bills of Rights: An Alternative Model?’ 69 Modern Law Review (2006) p. 7 CrossRefGoogle Scholar at p. 19-26.

⁶² Bellamy, supra n. 3, p. 158-159.

⁶³ Waldron, supra n. 6, p. 1389.

⁶⁴ Rosanvallon, supra n. 9, p. 155.

⁶⁵ Rosanvallon, supra n. 34, p. 306.

⁶⁶ Waldron, supra n. 6, p. 1382-1383.

⁶⁷ Waldron, supra n. 6, p. 1384.

⁶⁸ Waldron, supra n. 6, p. 1394.

⁶⁹ Lever, A., ‘Democracy and Judicial Review: Are They Really Incompatible?’, 7 Perspectives on Politics (2009) p. 805 CrossRefGoogle Scholar .

⁷⁰ Lever, supra n. 69, p. 810.

⁷¹ Lever, supra n. 69, p. 813.

⁷² Lever, supra n. 69, p. 812.

⁷³ Bellamy, supra n. 3, p. 40-41.

⁷⁴ Hiebert, supra n. 61, p. 28.

⁷⁵ Bellamy, supra n. 3, p. 205.

⁷⁶ André Laignel, quoted in Rosanvallon, supra n. 9, p. 146.

⁷⁷ Urbinati, supra n. 54, p. 68.

⁷⁸ Rosanvallon, supra n. 9, p. 139.

⁷⁹ See also Pettit (1997), supra n. 8, p. 195-200, for the importance of creating forums for contestation in a (republican) democracy.

⁸⁰ Waldron calls it ‘the right of rights.’ Waldron, supra n. 2, p. 232-254.

⁸¹ See also Eylon, Y. and Harel, A., ‘The Right to Judicial Review’, 92 Virginia Law Review (2006) p. 991 Google Scholar . Eylon and Harel reconceptualise judicial review in terms of the right to participation. They argue that citizens have a right to judicial review derived from the right to a hearing, implying that (strong) judicial review does not conflict with democracy. However, Eylon and Harel ignore the fact that, though citizens participate, the decision is made by judges. And for Bellamy, as for other democratic critics, ‘it is not just debating but also deciding that matters’: Bellamy, supra n. 3, p. 97.