The respective roles of courts and administrative authorities in assessing the legality of public action affecting constitutionally protected interests and values has been strongly debated in common law jurisdictions. In Canada, the Supreme Court articulated a methodology allegedly meant to ensure rigorous constitutional protection of fundametal rights 'while at the same time recognizing that the assessment [of that protection] must necessarily be adjusted to fit the contours of what is being assessed and by whom' (1 SCR 395 par. 4). I want to explore the justification for 'adjusting' the assessment of constitutionally protected rights to 'what is being assessed and by whom' in the light of principles of deliberative constitutionalism and democracy. I also want to see whether the administrative state is a legitimate site for deliberation about fundamental interests and values to take place.
This paper analyses public hearings in the Chilean constitutional court. Public hearings—which open the constitutional process to civil society—are a recently incorporated institution in Latin American constitutional jurisdictions that lack a sufficient theoretical assessment. According to the literature, the aim of public hearings is to expand deliberation within constitutional jurisdictions and, in this way, democratize them. This research analyzes the impact of public hearings on the Chilean constitutional court's judgments. The Chilean case is studied in light of the research regarding Latin American experiences. The objective is to determine whether public hearings have impacted the way in which judges ground their judgments.
This paper is divided into two parts. The first part claims that the democratic principle, a core element in modern constitutionalism, has a complex structure. It suggests that one way of describing such structure is by differentiating two sets of conceptual dynamics within the democratic principle. These conceptual dynamics refer to, on the one hand, legitimizing the exercise of political power, and on the other hand generating decisions that ground the exercise of political power. The second part draws on the understanding of the democratic principle presented in the first part to analyze its reconstruction by the German Constitutional Court. The core claim is that the main categories by which the democratic principle is legally operationalized are constructed as legitimatory, obscuring the second dimension inherent to it: the production of political power.
This paper identifies three conceptions of human rights legislative scrutiny and explores how they may respond to the different pressures that the JCHR faces. These conceptions are: a legalistic and court centered approach, a focus on constitutional deliberation, and the idea of constitutional construction and development. The pressures flow from the UK Parliament's decision to domesticate the European Convention of Human Rights by means of the 'Human Rights Act 1998' ('HRA'). There is ambiguity in the HRA, as the government placed an expectation on Parliament to comply with Convention rights, yet preserved parliamentary supremacy. Pressures for compliance with Convention rights demands a legalistic and 'court-centered' approach. By contrast, a focus on parliamentary sovereignty may fit better either with the idea of constitutional deliberation or that of constitutional construction and development. This paper assesses these conceptions against the JCHR's working practices.
This paper develops a baseline argument or 'core case' for the use of supermajority rules in constitutional courts to declare legislation unconstitutional. My core case only applies to jurisdictions with 'strong' systems of constitutional adjudication, and only to constitutional courts that allow public dissent and that actually take a vote. My core case is grounded on four arguments: first, supermajority rules increase constitutional courts' collective accuracy according to the Condorcet Jury Theorem; second, supermajority rules promote deliberation among judges; third, supermajority rules increase constitutional courts' public reputation; and fourth, supermajority rules protect the constitutionality of statutes. The rest of the paper addresses some possible objections and comments against my core case.