Decisiones constitucionales sobre especificación de derechos. Contribuciones para un modelo más comprometido con la democracia

The tension between democracy -as self-government- and human rights -as demands for limits on government- still causes insomnia to constitutionalists. That “dilemma” is particularly clear when judicial review and the entrenchment of rights in rigid constitutions are discussed. In previous papers, I have argued that (i) formal constitutions are justified exclusively if their rigidity derives from the best democratic procedure available –which also means it should be relatively easy to achieve- and (ii) judicial review contributes the perspective of the case but it is only acceptable if democratic principle and the whole institutional design are seriously considered by judges. Anyway, said grounds are necessary but not sufficient to defeat the counter-majoritarian difficulty. Decisions specifying rights are indeed constitutional, therefore, they should be also defined under an intense democratic procedure. I hereby intend to propose alternatives involving citizens in said decisions.