Between Facts and Norms - Contributions to a ... - Blogs Unpad

264Chapter 6depends for its part on the manner and extent to which democraticcitizens can effectively exercise their communicative and participatoryrights. Hence, the constitutional court must examine thecontents of disputed norms primarily in connection with thecommunicative presuppositions and procedural conditions of thelegislative process. Such a procedural understanding of the constitutionplaces the problem of legitimating constitutional review in thecontext of a theory of democracy. In this respect, the Americandiscussion is more informative than the German.The apposite conception developed by Ely adopts a skepticalattitude toward judicial activism. His approach is admittedly intendedto relieve adjudication of any orientation to legal principleswith moral or ethical origins. Ely proceeds on the assumption thatthe United States Constitution primarily regulates organizationaland procedural problems and is not designed to single out andimplement basic values. In his view, it is not substantive but formalregulations (like equal protection or due process) that make up thesubstance of the Constitution: "Our Constitution has always beensubstantially concerned with preserving liberty . ... The question . ..is how that concern has been pursued. The principle answers tothat . .. are by a quite extensive set of procedural protections, andby a still more elaborate scheme designed to ensure that in themaking of substantive choices the decision process will be open toall on something approaching an equal basis, with the decisionmakers held to a duty to take into account the interests of all thosetheir decisions affect. "42 If the Supreme Court is supposed tooversee adherence to the Constitution, then it must in the first placelook after the procedures and organizational norms on which thelegitimating effect of the democratic process depends. The Courtmust ensure that the "channels" for the inclusive opinion- and willformationprocesses through which a democratic legal communityorganizes itself remain intact: "unblocking stoppages in the democraticprocess is what judicial review ought preeminently to beabout. "43From this perspective, the communicative and participatoryrights that are constitutive for democratic opinion- and will-formationacquire a privileged position. The principle of equal treatmentis not just violated by the content of laws that possibly discriminate