In constitutional democracies, rights-based judicial review, in the course of which judges test legislative enactments for their consistency with bills of rights, is commonly justified as necessary to prevent the ‘tyranny of the majority’, that is, the violation of the rights of individuals by majorities. Two important objections have nevertheless been advanced against the practice of rights-based judicial review. The first originates in the ‘counter-majoritarian difficulty’: because unelected and unaccountable judges are authorized to invalidate enactments of an elected branch of government, judicial review suffers from a deficit of democratic legitimacy. The second objection rests on a claim about the superior epistemic competence of legislatures relative to courts in constitutional matters: compared with large and diverse modern legislatures, courts are epistemically inferior, it is claimed, because of the relatively small number of judges, because of the judiciary’s lack of professional diversity, and because of the limited information resources available to judges.

Several important questions arise concerning the democratic legitimacy and desirability of rights-based judicial review:

• To what extent is rights-based judicial review undemocratic?
• Are courts more likely to uphold individual rights than legislatures?
• Is the judicial invalidation of legislation on constitutional grounds likely to result in a weakening of the processes of education and persuasion associated with the activities of legislators?
• Is the loss of ultimate responsibility for determination of the questions of rights likely to make legislators and citizens more apathetic and irresponsible?
• Do courts lack epistemic competence relative to the elected branches of government, and if so, is this a telling objection to rights-based judicial review?
• Is the judicial enforcement of socio-economic rights, in the course of which judges are required to make difficult policy choices about resource application and strategy, particularly objectionable from the perspectives of democracy and epistemic competence?
• Does either the superior democratic legitimacy or superior epistemic capacity of legislatures relative to courts suggest that courts should show deference to legislatures in constitutional adjudication?
• Aside from the issue of deference, what modifications to existing practices of judicial review are the judiciary in a position to make in order to answer concerns about the democratic legitimacy and epistemic competence of courts?
• Should legislatures be permitted to override judicial interpretations or applications of rights with which they disagree?

Article submissions (in English) are invited for a special issue of Theoria devoted to these and related questions.

Please refer to the following website (http://journals.berghahnbooks.com/th/index.php?pg=notes) for Notes to Contributors on housestyle requirements. All submissions must adhere to the Theoria housestyle.