Gertrude Lübbe-Wolff

Constitutional Courts and Democracy. Facets of an Ambivalent Relationship

This chapter addresses the ambivalence of judicial review as a safeguard for and constraint on democracy. On the one hand, constitutional review provides an important safeguard for rights and procedures which are essential to democracy. On the other hand, an institution which is able to protect democratic rights and principles will necessarily – at least now and then – come to be seen as overreaching, and thereby itself intruding upon principles of democracy. The chapter also draws attention to factors promoting the institutionalisation of constitutional adjudication worldwide, and to institutional frameworks shaping the more or less activist approach of courts in constitutional matters. It shows why German democracy has fared well, so far, with a powerful constitutional court which has, to a certain extent, assumed the role of a guardian of rational lawmaking, and why there is no “one and only” proper solution to the democracy dilemma implicit in the question of constitutional review.