Judging Constitutions: Identifying Strategies to Reach a More Perfect Balance between Judicial Review and Representative Democracy through Comparative Constitutional Law

Abstract

The debate between judicial review and the democratic process is an exhausting one in the United States. Where judicial review works to ensure the protection of rights, the democratic process ensures representation and is emblematic of a functioning democracy. In this thesis, I put forward tools that work to maintain a balance between these two seemingly opposing notions. These tools are in-line with the broader theory of judicial dialogue and in support of my own theory, the pendulum theory of government. The discovery of these tools is made possible by assessing the jurisprudence of foreign constitutional systems Germany, Colombia, and Canada. In Part I, I explore the issues present in the United States in regards to this balance. In Part II, I examine the use of tools such as the exhorto and the override in foreign constitutional systems. In Part III, I theorize how these mechanisms may work in the context of the United States.