Deliberative Democracy and the Institutions of Judicial Review
Cambridge University Press, 3/26/2007
EAN 9780521867344, ISBN10: 0521867347
Hardcover, 376 pages, 22.9 x 15.2 x 2.5 cm
Language: English
Originally published in English
In this book, Christopher F. Zurn shows why a normative theory of deliberative democratic constitutionalism yields the best understanding of the legitimacy of constitutional review. He further argues that this function should be institutionalized in a complex, multi-location structure including not only independent constitutional courts but also legislative and executive self-review that would enable interbranch constitutional dialogue and constitutional amendment through deliberative civic constitutional forums. Drawing on sustained critical analyses of diverse pluralist and deliberative democratic arguments concerning the legitimacy of judicial review, Zurn concludes that constitutional review is necessary to ensure the procedural requirements for legitimate democratic self-rule through deliberative cooperation. Claiming that pure normative theory is not sufficient to settle issues of institutional design, Zurn draws on empirical and comparative research to propose reformed institutions of constitutional review that encourage the development of fundamental law as an ongoing project of democratic deliberation and decision.
Part I. Introduction
1. An old chestnut is actually two
2. Pathologies of ad hoc triangulation
3. Functions and institutions
Part II. Majoritarian Democracy and Minoritarian Constitutionalism
4. Judicial review as substantially legitimate protection of minority rights
5. Judicial review as procedurally legitimate protection of democracy
6. Moving beyond aggregative majoritarianism and minoritarian constitutionalism
Part III. From Majoritarian to Deliberative Theories of Constitutional Democracy
7. Deliberative democracy
four axes of analysis
8. Constitutionalism
four central elements
9. Constitutional democracy?
Part IV. Deliberative Democracy and Substantive Constitutionalism
10. Keepers of the substantive flame of American exceptionalism
11. Guardians of the moral law in the forum of principle
12. Are substantialist defenses of judicial review self-defeating?
Part V. Disagreement and the Constitution of Democracy
13. Democratic precommitment to judicial review
Freeman
14. Deliberative majoritarianism and the paternalism of judicial review
Waldron
15. Upshot
we need a theory of democratic constitutionalism
Part VI. The Seducements of Juristic Discourse as Democratic Deliberation
16. A division of labor between juristic deliberation and populist aggregation?
17. Actual juristic discourse in the United States system of constitutional adjudication
18. Legal principles and moral-political reasoning
Part VII. Constitutionalism as the Procedural Structuring of Deliberative Democracy
19. A provisional summary
criteria for an adequate theory of constitutional review
20. Guardians of the conditions of procedural legitimacy
Habermas
Part VIII. The Institutions of Constitutional Review I
Design Problems and Judicial Review
21. The problems of designing institutions of constitutional review
22. Independent constitutional courts in a concentrated review system
Part IX. The Institutions of Constitutional Review II
Horizontal Dispersal and Vertical Empowerment
23. Self-review panels in the legislature and regulatory agencies
24. Mechanisms for inter-branch debate and decisional dispersal
25. Easing formal amendability requirements
26. Establishing civic constitutional fora.