Foundations of Majority Rule and its Application to Constitutional Courts

One of the most salient features of many constitutional democracies is the existence of constitutional courts that can control the constitutionality of statutory legislation. In order to decide whether to invalidate statutory provisions as unconstitutional, most constitutional courts use majority rule. In this paper, I argue that the main justifications provided for majority rule as a general collective decision-making procedure do not sufficiently apply to constitutional courts. In order to do this, I consider each of the prevalent theories formulated to support majority rule and assess their applicability to the judicial review context. The lack of sufficient justification for the use of majority rule in constitutional courts is important because, if there is no sufficient basis for using majority rule in constitutional courts, a case can be built for replacing majority rule by other voting rules when it comes to resolving whether a staturoy provision is constitutional or not.