Militating Democracy: Comparative Constitutional Perspectives

Can constitutional review by judges save democracy? This Article identifies and discusses the rise of “militant constitutional democracy” by exploring diverse approaches to the role of constitutional and transnational judicial review in rights protection and the challenges that these approaches present to the workings of democracy, the possibilities of compromise, consensus, and conciliation in political life, and the challenge to other constitutional values as well. “Militant constitutional democracy” ought to be understood as belonging to transitional constitutionalism, associated with periods of political transformation that often demand closer judicial vigilance in the presence of fledgling and often fragile democratic institutions; it may not be appropriate for mature liberal democracies. As more robust institutions emerge, a more liberal form of constitutionalism may be apposite, which could offer a more pluralist approach to the tolerance even of illiberal practices, so long as these are understood as private, and not capturing of the State. Finally, the critical divide that may well illuminate comparative approaches to this area may devolve less on differing views of the value of the protection of individual expression or association and more on the differing approaches to the regulation and ergo conceptualization of the public sphere and its relation to the State.