How does the idea of representative constitutional courts relate to the dominant traditions of political representation? To begin with, both traditions impose limits on the understanding of the representative nature of constitutional courts. First, once introduced into the dual representational scheme of divided power, constitutional courts run the risk of becoming another instance of competitive political division, producing its partisans and detractors. Second, understood as a power that must be responsive to the democratic community and its multiple and conflicting claims to representation, constitutional courts may end up being too dependent on the “advocacy” of political representation, thus becoming the “masters” of the representative process. The way to contain these limitations is not to exclude courts from the representative device, but to identify a representative function that may be appropriate for a constitutional court. While constitutional courts, as a form of state authority, ultimately derive their power from the people, their representative function is to maintain the people’s trust in the constitutional value of representative balance. In other words, constitutional courts do not represent the people; rather, they represent the people’s trust in the representative balance enshrined in a constitutional democracy.

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Constitutional Courts as Trustees: Protecting the Representative Balance

  • Pedro Lomba

摘要

How does the idea of representative constitutional courts relate to the dominant traditions of political representation? To begin with, both traditions impose limits on the understanding of the representative nature of constitutional courts. First, once introduced into the dual representational scheme of divided power, constitutional courts run the risk of becoming another instance of competitive political division, producing its partisans and detractors. Second, understood as a power that must be responsive to the democratic community and its multiple and conflicting claims to representation, constitutional courts may end up being too dependent on the “advocacy” of political representation, thus becoming the “masters” of the representative process. The way to contain these limitations is not to exclude courts from the representative device, but to identify a representative function that may be appropriate for a constitutional court. While constitutional courts, as a form of state authority, ultimately derive their power from the people, their representative function is to maintain the people’s trust in the constitutional value of representative balance. In other words, constitutional courts do not represent the people; rather, they represent the people’s trust in the representative balance enshrined in a constitutional democracy.