CONSTITUTIONAL JUSTICE, HUMAN RIGHTS AND COUNTER-MAJORITARIAN ARGUMENT

Abstract

The author, in the context of the debate on the relationship between constitutional justice and the democratic process, argues in favour of considering the constitutional judicial review as a necessary but not sufficient condition for the existence of a democratic rule of law. After analyzing the positions and general arguments of this debate, as well as some specific aspects of how it is being developed in Latin America, he argues for a model of a weak democracy, in which a series of rights, mainly civil and political rights are constitutionally entrenched and are considered preconditions of the democratic process. For this very reason, these two types of rights may be protected by constitutional courts, even against the majority legislature, without undermining the democratic dimension of the political system. With regard to welfare rights, given their distributive dimension and their relation with the welfare and needs of the population, their guarantee should not be left exclusively in the hands of the judges, because they can hardly be considered preconditions of democracy. That does not means, the author says, that they should not be constitutionalized, or that somehow the constitutional court should not be involved in their guarantee by the legislature.