Conclusion
The community values approach, where judges justify decisions in hard cases by referring to the community’s own values, has enjoyed judicial and academic support in several jurisdictions.
It has continued to be asserted despite critiques that have argued that it aggravates rather than lessens anxiety about the democratic legitimacy of judicial decision-making.However, rather than simply dismissing this approach as offering a false path to democratic legitimacy, this paper has explored the underlying aim of promoting the democratic legitimacy of constitutional review by connecting decisions with community values. This partly involved discussion of democratic theorists referred to by two adherents of the community values approach, Wellington and Waluchow. Wellington referred to Dahl, and Dahl’s democratic theory is helpful, for instance, in understanding community values as informed majority opinion. Waluchow, on the other hand, refers to Dworkin’s constitutional conception of democracy. This is helpful in providing a fairly stringent approach to the conditions that have to be satisfied before judicial deference to informed majority opinion would be justified.
The paper then employed findings from deliberative polls to support, for instance, a distinction between informed and ordinary public opinion. Deliberative polls provide a feasible methodology for determining informed public opinion. This methodology was adapted in my proposal for constitutional juries. Constitutional juries promise a way to achieve democratic legitimacy in constitutional review. Their feasibility would support the attractiveness of the aim in the community values approach of connecting constitutional review to the community’s values.
An analogy can be made between the community values approach and community values, on the one hand, and the community values approach and constitutional juries, on the other hand.
Just as it would be wrong to use broad values the community agrees with to suggest that the community truly supports, or would support a particular decision if it adopted a rational perspective, it would be wrong to suggest that the community values approach contains a deeper commitment to constitutional juries, assuming the latter can be attractively implemented. However, just as one could argue that if the community agrees with a certain general value, it should also be committed to a certain position on a particular issue, one could argue that the ambition of the community values approach to link community values to constitutional review should lead to consideration of constitutional juries.Acknowledgments I thank Thomas Bustamante for inviting this contribution and for his questions of the oral paper delivered at the University of Minas Gerais in Belo Horizonte in November 2014. That presentation also prompted helpful discussions with Wil Waluchow and Chris Zurn. I also thank the insightful commentators on my paper, Marcelo Maciel Ramos and Marcelo Kokke. Finally, I am grateful for the opportunity to present the paper at the law schools at the Indian Institute of Technology, Kharagpur, and Jindal Global University, Delhi, and to Madhumita Mitra for a helpful discussion.