Legitimacy and the Misguided Quest for a Representative Constitutional Court

This chapter casts doubt on the view, put forward in recent years by Robert Alexy among others, that the legitimacy of constitutional review rests (at least in part) on the fact that constitutional courts are representative institutions. It mounts a three-pronged challenge against Alexy’s account. First, it proposes the following litmus test for accounts, such as Alexy’s, which portray courts as representatives: they must offer a convincing explanation of the distinctive contribution that the courts’ putative representative character makes to political legitimacy such that it justifies that they be given the power of constitutional review. Second, it criticizes Alexy’s claim that courts are argumentative representatives in the sense that they represent (many) citizens qua rational agents through the way they reason their decisions. However, if the standard of reasoning that judicial decisions must meet is demanding, akin to correctness, then it is not representation that does the moral heavy lifting. And if it is understood as mere plausibility, then it is unclear why we would be bound by a decision solely because it satisfies it. Second, the chapter seeks to undercut the motivation for Alexy’s account by arguing against the proposition -which he seems to presuppose- that the legitimacy of a democratic regime depends on its being willed (in the appropriate sense) by the people. In its place the chapter offers a different understanding of legitimacy, informed by the ideal of separation of powers, that provides that government ought to be shaped by different moral forces -not all of which refer back to the people’s will. On this understanding, it is morally appropriate, all else being equal, for power to be assigned to a multiplicity of institutions, some representative, some not representative. The upshot of this understanding is that proponents of constitutional review do not have to defend it by fitting it into the representation straitjacket.