The (mis)representation of constitutional courts’ decision-making: do the people have a role to play in this mythological tragedy?

In this essay, I address the way legal theorists have depicted constitutional courts’ decision-making. My goal is to throw light on problems posed by the absence of a proper role for the people in the figurative representation of constitutional argumentation. I shall categorize the depictions of constitutional courts found in legal theory as: an oracle speaking on behalf of the gods (Dworkin and Ost); a character giving the audience a cathartic relief (Sunstein); a deus ex machina unexpectedly resolving the story (Barroso); or a chorus expressing what the main characters could not say (Alexy). As I demonstrate, none of these authors devote enough attention to the fact that in a democracy the people ought to play an active role in constitutional argumentation. I conclude that this lack of figurative representation has led to exclusionary normative models in which those affected by constitutional courts’ decisions have only limited (if any) participation in the decision-making process.