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Towards a framework for understanding constitutional deference 293
the efficacy of the protection of rights through a system of judicial review. That
is a separate question. 4
Neither does this discussion consider the political objections to a rightsbased
discourse which argues that a rights-discourse impoverishes our
conception of society and leads to a preoccupation of the individual with his
or her rights, rather than a more group-based approach to rights. 5 The
argument that judicial review is a preferable or even a necessary means to
ensure adequate protection of constitutional rights does not affect the
question of the democratic legitimacy of judicial review. Rather, the
‘democracy versus juristocracy debate’ is one that hinges on the
countermajoritarian nature of judicial review, since unelected (and therefore
democratically unaccountable) judges, in engaging in judicial review,
overturn the decisions of the democratically-elected representatives of the
majority. This is the ‘paradox’ of judicial review in constitutional
democracies: on the one hand, separation of powers requires that courts hold
government accountable to the standards set out in the constitution; yet this
power given to the courts may be used to thwart the very right to political
participation by withdrawing debate from the public arena to the domain of
the courts. 6
Advocates of judicial review have essentially three arguments open to
them in the face of this objection to judicial review. First, they can limit the
scope of judicial review to procedural matters in order to remove the
democratic objections to substantive judicial review. This is the approach
promoted by Ely. 7 This argument will not be considered here, and focus
will be placed instead on arguments surrounding the democratic legitimacy
of substantive constitutional review as these are the arguments relevant to
a discussion of deference in constitutional review. The second avenue open
to judicial review proponents is to question the assumption that democracy is
the sole determinant of legitimacy. Such theorists would accept the
undemocratic nature of constitutional review, but argue that it is nonetheless
valuable as it affords greater protection for rights. The final option is to
challenge a notion of democracy that excludes judicial review, that is, when
properly understood, democracy is in fact enhanced by judicial review. 8
4 See W Sadurski ‘Judicial review and the protection of constitutional rights’ (2002) 22
Oxford Journal of Legal Studies 275 276.
5 See, eg, M Tushnet ‘An essay on rights’ (1984) 62 Texas LR 1363 1384 - 1394; J Waldron
‘Nonsense upon stilts? – a reply’ in J Waldron (ed) Nonsense upon stilts: Bentham, Burke and
Marx on the rights of man (1987) 151 183 - 190; C Mouffe ‘Hegemony and new political
subjects: Toward a new concept of democracy’ in C Nelson & L Grossberg (eds)
Marxism and the interpretation of culture (1988) 89 100.
6
R Hirschl ‘Looking sideways, looking backwards, looking forwards: Judicial review vs
democracy in comparative perspective’ (2000) 34 University of Richmond LR 415 421.
7 J Ely Democracy and distrust: A theory of judicial review (1980).
8
P Lenta ‘Democracy, rights disagreements and judicial review’ (2004) 20 SAJHR 1 8 -
13.