Conclusion

Attentive readers may have noticed that I have said nothing so far about the role of CJR in protecting individual rights - in particular, the rights of vulnerable minorities. Surely if a serious consideration counts in favor of CJR, the protection of rights is one of them, perhaps the most important one.

The question of whether CJR is more or less likely to protect the rights and interests of vulnerable minorities in society is a serious and difficult one and I will not deal with it here. Elsewhere, I raised some doubts about it, in some detail, and I will not repeat the argument here. Besides, as some philosophers have pointed out, the issue is, largely, an empirical one. It needs to be examined, on the basis of historical evidence, whether CJR has done a good job of protecting the rights of vulnerable minorities in society, or not. And history does not seem to side with the supporters of constitutionalism in this respect, at least not evidently so.^[23] But, again, I will not go into this here. My argument in this paper is not meant to provide an overall assessment of the arguments for and against constitutional judicial review. It is only meant to suggest that the counter-majoritarian rationale of CJR is seriously wanting. The current system of CJR is fraught with arbitrary elements, to an extent that makes the system only marginally better, if at all, compared with an overtly and blatantly randomized system. As I warned from the start, this is not a conclusive argument against CJR, but it should give us some pause.

Acknowledgment I am grateful to Leticia Morales, Alex Sarch, and the participants of the Legal Theory Workshop McGill University for helpful comments on earlier drafts.

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Source: Bustamante Thomas, Fernandes Bernardo. Democratizing Constitutional Law: Perspectives on Legal Theory and the Legitimacy of Constitutionalism. Springer International Publishing,2016. — 327 p.. 2016

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