
Contents
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I. Introduction I. Introduction
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II. Substance and Procedure II. Substance and Procedure
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III. Governing Together III. Governing Together
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IV. Legislative Initiative IV. Legislative Initiative
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A. Deliberation and support A. Deliberation and support
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B. The value of representative government B. The value of representative government
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C. Representation and authenticity C. Representation and authenticity
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D. Not the last word but the first D. Not the last word but the first
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V. Judicial Independence and Varieties of Supervision V. Judicial Independence and Varieties of Supervision
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A. Legislatures in the real world A. Legislatures in the real world
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B. The duty to respect the legislature B. The duty to respect the legislature
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C. Constitutional review and initiative C. Constitutional review and initiative
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D. Independence in a system of checks and balances D. Independence in a system of checks and balances
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E. Independence and finality E. Independence and finality
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VI. Strong and Weak Constitutional Review VI. Strong and Weak Constitutional Review
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VII. Conclusion VII. Conclusion
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6 Constitutional Review in Representative Democracy
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Published:July 2017
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Abstract
The legitimacy of constitutional review of legislation depends on a proper appreciation of the contributions of courts and the legislature in the project of governing. This chapter argues that legislatures rightly have the initiative in this project, because the role of legislators is structured so as to enable them to combine the demands of popular support and moral innovation. This, and not political equality, is the value of democratic representation. Giving legislatures the initiative, however, does not mean giving them the last word. In addition, legislative initiative comes with grave risks, which institutional design must try to avert. By virtue of their independence, courts are well-equipped to check those risks. At the same time, judicial supervision is compatible with the legislature’s valuable contribution. Whether under a system of strong or weak constitutional review, courts can remain subsidiary to the legislature.
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