Visions of self-government: constitutional symbolism and the question of judicial review

Abstract

This thesis investigates the question of whether judicial review of legislation is a hindrance to democracy. My main claim is that the existing literature on this topic fails to pay adequate regard to the symbolic significance of political institutions, that is, the role that legislatures and courts play in the popular imagination. I argue that we should not view constitutional systems merely as decision-making mechanisms, since a society’s institutional structure will colour its sense of political agency and shape the way in which citizens view their relationships with political officials and with one another. Different constitutional structures accordingly project different visions of constitutionalism and democracy. In particular, I argue, representative government should be viewed not merely as a compromise between equality of input and quality of output, but as a distinctively valuable form of government in its own right. The representative assembly serves as the focal point for public political debate and symbolises a commitment to government through an inclusive process of deliberation. Legislative supremacy – the practice of accepting the enactments of a representative assembly as the decisions of the people as a whole – can therefore allow the law to be seen as the output of the political power of a self-governing people. Judicial review, on the other hand, will tend to signify a set of boundaries around the democratic political process, thus truncating the people’s shared sense of self-government.