Contemporary Crisis of Constitutional Democracy and Judicial Review: On Democracia y participación ciudadana by Cristina Lafont

Abstract

In this article, I first examine the contemporary crisis of constitutional democracy, including its main manifestations, causes, and consequences. Second, I reconstruct Cristina Lafont’s critique of the theoretical responses offered to this crisis: deep pluralism, epistocracy, and lottocracy. Third, I reconstruct her analysis of the substitutive, complementary, and auxiliary versions of citizens’ assemblies as possible institutional responses to this crisis. Fourth, I examine her conception of recursive democratic legitimacy, according to which legitimacy requires the possibility of contesting majority decisions on substantive grounds when fundamental rights are at stake. Finally, I argue that there is a tension between this conception and the strong-form model of judicial review that she takes as a reference. Although this model allows for review on substantive grounds, it makes the further revision of judicial decisions more difficult and, paradoxically, generates the blind deference that Lafont seeks to avoid, thereby aggravating the conditions of political alienation associated with the contemporary crisis.