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Constitutional courts are portrayed as counter-majoritarian institutions empowered to strike down ordinary legislation that is inconsistent with the constitution. This power is to be used sparingly, since it is seen as being in tension with basic democratic principles. Judicial review in these circumstances should be limited to minority rights protection and the enforcement of structural limitations that prevent majority rule excess. But this is only half the story. Depending on the democratic credentials of the particular constitution, courts that strike down legislation as inconsistent with the constitution can also be said to be engaging in majoritarian action. The characterization of constitutional courts as counter-majoritarian institutions is premised on: (1) the status of ordinary legislation as the quintessential majoritarian instrument, (2) the un-elected nature of judges, (3) a narrow understanding of the concept of the ‘negative legislator’, and (4) the democratic deficit that results when judges impose their views over those enacted by parliament. This Article challenges these assumptions. First, this Article demonstrates that ordinary statutes adopted by elected legislatures are not necessarily the superior articulation of popular will. On the contrary, the democratization of modern constitution-making allows the constitution to acquire ultimate majoritarian status. Because of popular skepticism about the ability of ordinary politics to adequately reflect society’s views on important substantive policy matters, the People have repeatedly decided to bypass the legislative process and directly entrench these policy views in the constitutional text. As a result, it is the constitution that embodies popular will. Second, this Article dissects the so-called counter-majoritarian difficulty, in order to distinguish between illegitimate counter-majoritarian review and legitimate counter-majoritarian review. The former occurs when the constitutional court substitutes the legislature’s policy views with its own, thus generating an impermissible democratic deficit. The latter occurs when the constitutional court invalidates ordinary legislation that violates minority rights or exceeds the structural limits imposed by the constitution. In both instances, counter-majoritarian intervention is warranted, precisely, to make sure that democratic self-government through ordinary politics can be adequately carried out. Third, this Article suggest the existence of a third class of judicial review: legitimate majoritarian review. This is when a constitutional court invalidates ordinary statutes because the legislature attempted to substitute the will of the constitutional drafters with their own. In other words, in instances when the legislative body carries out an anti-majoritarian act by ignoring the policy choices made by the People and entrenched in the constitutional text. When a court strikes down legislation of this sort, it is actually re-establishing majoritarian self-rule by making sure that the constitution’s policy commands are respected. In that sense, the court is not exercising independent judgment. Instead, it becomes the enforcement instrument of the majoritarian constitution to avoid legislative usurpation. This makes the un-elected nature of courts an almost irrelevant factor. Finally, this Article explores how the majoritarian potential of judicial review on constitutional matters interacts with the ‘negative legislator’ role of constitutional courts. In particular, how the ‘negative legislator’ should not be characterized, necessarily, as a limited one.

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Vienna Journal on International Constitutional Law

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