Abstract

BURITICA-ARANGO, ESTEBAN. Judicial Review of Legislation and Tyranny of the Majority: A Critical Analysis of the Judicial Protection of Minorities in Democratic States. Rev. Derecho Estado [online]. 2024, n.58, pp.183-211.  Epub Feb 17, 2024. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n58.07.

Some theorists have traditionally argued that judicial review of legislation is legitimate because it protects the rights of minorities and marginalized groups against the faulty or malicious decisions of majorities. In this article, I argue that the ability of judges to protect minorities can only justify judicial review when specific normative and factual assumptions are met. Those assumptions include the existence of factors that increase the commitment of judges to minority rights, the malfunction of the majority decision-making process, and the little or no impact of judicial review on the capacity of the legislature to protect rights. As these conditions can be met only contingently and their empirical verification is often difficult, I conclude that the minority protection argument provides a limited and contextual justification for judicial review of legislation.

Keywords : Minorities; judicial review of legislation; constitutional interpretation; political legitimacy; democracy.

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