Difficoltà contromaggioritaria, principio di maggioranza, rappresentatività e difesa del “judicial review” di Ivan Valia
Abstract – Can we defend the judicial review as an instrument of protection for the democratic system? Indeed, its legitimacy is often questioned because of the lack of representativeness of the constitutional court. Especially in the United States there is a vigorous debate around the consideration that a non-elected body is taking fundamental decisions on the community’s life. The court, as claimed by Bickel, would act on the basis of a counter-majority force, producing tensions within the democratic order by going against the prevailing majority. Waldron’s theory will also be analyzed as one of the most critical positions against judicial review. The purpose will be to propose broader definitions of “representativeness” and “majority”. This will support the legitimacy of judicial review in a more persuasive way, and the awareness that the protection of the system’s fundamental values is ultimately connected on the level of expertise of those defending them.
Keywords – Counter-majoritarian difficulty, sovereignty, representativeness, fundamental rights