Deliberative Democracy and the Institutions of Judicial Review

Zurn examines the legitimacy of constitutional review using a normative theory of deliberative democratic constitutionalism.

Christopher F. Zurn is associate professor of philosophy at the University of Kentucky. The recipient of a Humboldt Fellowship in 2004, he has published articles on deliberative democracy, judicial review, critical theory, feminism, moral theory, and aesthetics. An article on democracy and judicial review was chosen as one of the ten best philosophy articles published in 2002 by the editors of Philosopher's Annual, vol. XXV.

Part I. Introduction: 1. An old chestnut is actually two; 2. Pathologies of ad hoc triangulation; 3. Functions and institutions; Part II. Majoritarian Democracy and Minoritarian Constitutionalism: 4. Judicial review as substantially legitimate protection of minority rights; 5. Judicial review as procedurally legitimate protection of democracy; 6. Moving beyond aggregative majoritarianism and minoritarian constitutionalism; Part III. From Majoritarian to Deliberative Theories of Constitutional Democracy: 7. Deliberative democracy: four axes of analysis; 8. Constitutionalism: four central elements; 9. Constitutional democracy?; Part IV. Deliberative Democracy and Substantive Constitutionalism: 10. Keepers of the substantive flame of American exceptionalism; 11. Guardians of the moral law in the forum of principle; 12. Are substantialist defenses of judicial review self-defeating?; Part V. Disagreement and the Constitution of Democracy: 13. Democratic precommitment to judicial review: Freeman; 14. Deliberative majoritarianism and the paternalism of judicial review: Waldron; 15. Upshot: we need a theory of democratic constitutionalism; Part VI. The Seducements of Juristic Discourse as Democratic Deliberation: 16. A division of labor between juristic deliberation and populist aggregation?; 17. Actual juristic discourse in the United States system of constitutional adjudication; 18. Legal principles and moral-political reasoning; Part VII. Constitutionalism as the Procedural Structuring of Deliberative Democracy: 19. A provisional summary: criteria for an adequate theory of constitutional review; 20. Guardians of the conditions of procedural legitimacy: Habermas; Part VIII. The Institutions of Constitutional Review I: Design Problems and Judicial Review: 21. The problems of designing institutions of constitutional review; 22. Independent constitutional courts in a concentrated review system; Part IX. The Institutions of Constitutional Review II: Horizontal Dispersal and Vertical Empowerment: 23. Self-review panels in the legislature and regulatory agencies; 24. Mechanisms for inter-branch debate and decisional dispersal; 25. Easing formal amendability requirements; 26. Establishing civic constitutional fora.