Many constitutional theorists have defended judicial action and activism in the interest of protecting “democracy” or the democratic process. Where courts set out to protect parliamentary rights and powers, this falls squarely within the ambit of such theories. And yet, in quite a few cases, courts act even where parliaments could, at least in theory, assert their own rights, thus raising the question if and when such judicial paternalism might be defensible. This paper takes up that question by looking more closely at the kind of deficiencies courts encounter in the democratic process, asking which kinds of situations might justify such constitutional paternalism.
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