Constitutional Rights, Democracy, and Representation

The article concerns the question of how the legal power of a constitutional court to overturn acts of parliament can be justified. This issue addresses the perennial problem of the relation between constitutional review and democracy. My reflections on this question refer to constitutional rights, a field in which the problem of constitutional review is posed with special urgency. The thesis of this paper is that constitutional review can be justified on the basis of principles theory on the one hand and on the basis of the tbeory of argumentative representation on the other. The norm-theoretic basis of principles theory is the distinction between rules and principles. Rules are definitive commands, principles are optimization requirements. Principles as optimization requirements imply the principle of proportionality and vice versa. This is the main reason why constitutional rights essentially have the character of principles. The latter implies that constitutional rights are necessarily connected with balancing. A formal analysis of balancing shows that balancing is a form of rational argumentation. At this point, the question arises as to why the balancing arguments of the constitutional court ought to take priority over the arguments of the legislature. The answer to this question stems from the connection of three arguments: a formal, a substantive, and a procedural argument. The procedural argument is of special importance. It says that constitutional review can be justified if and only if it can be conceived, in my terms, as the argumentative representation of the people.