Judicial Dictatorship: Potential Institutionalisations of the Constitutional Review Process

This paper concerns constitutional review of legislation, a widely discussed issue within comparative constitutional law. Specifically, this paper addresses the issue of the lack of democratic legitimacy that U.S. style judicial review has and the potential lack of stability that other weak form constitutional review mechanisms have. Three constitutional review procedures are proposed in this paper, with the commonly overlooked executive branch playing a central role in each review mechanism. These proposed procedures aim to solve democratic legitimacy and stability issues. While all three arguably accomplish the mentioned goal, the paper addresses the issues each proposed mechanism has before defending the leading mechanism. The paper offers a possible solution to the seemingly unresolvable tension within constitutional review of parliamentary sovereignty and judicial supremacy. The described mechanisms and the outcomes they produce seems to show that democratically based constitutional review is possible and it is not necessary to rely on unelected judges to ensure that constitutional rights are maintained. Ultimately, this paper aims to show that a redistribution of constitutional review power among all state organs is the best way to ensure that legislation conforms to constitutional norms.