Activism disguised as deference: the case of constitutionally conforming interpretation

Advocates of constitutionally conforming interpretation (CCI) advance several arguments in its favour. They argue for instance that there is presumption of constitutionality in favour of ordinary legislation. From this normative argument usually follows an institutional one, according to which CCI strengthens separation of powers and ultimately democracy, because it encourages courts to uphold rather than to strike down legislation.
My presentation challenges both the assumptions on which the CCI is grounded, as well as its effects on separation of powers. Among other things, I will argue that this canon of interpretation is based on an unsound concept of presumption of constitutionality and that it may lead to less (and not more) judicial deference towards the democratically elected parliament. I intend to present a clear concept of CCI and to point out that its real effects on the relation between courts and legislatures may be much more problematic than usually assumed.