Visions of self-government: constitutional symbolism and the question of judicial review
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Date
30/06/2016Author
Latham, Alexander George
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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.