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Democratic LegitimacyImpartiality, Reflexivity, Proximity$
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Pierre Rosanvallon

Print publication date: 2011

Print ISBN-13: 9780691149486

Published to Princeton Scholarship Online: October 2017

DOI: 10.23943/princeton/9780691149486.001.0001

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On the Importance of Not Being Elected

On the Importance of Not Being Elected

(p.154) Chapter Nine On the Importance of Not Being Elected
Democratic Legitimacy

Pierre Rosanvallon

, Arthur Goldhammer
Princeton University Press

This chapter considers the issue of whether or not it is democratic for a handful of unelected judges to be able to impose their views on the representatives of the people. For nearly a century, Americans have been fearful that the fundamental principles of democracy might by perverted by one form or another of judicial power. This issue, an inevitable consequence of constitutional review, came to be called “the countermajoritarian difficulty” in the 1960s. This chapter delves into the issue of judicial power by returning to constitutional courts, which exist because reflexivity is an essential part of democracy. Thus, these courts acquire a functional legitimacy. The chapter then asks if constitutional judges must be elected in order for these courts to be fully legitimate.

Keywords:   constitutional courts, unelected judges, judicial power, constitutional review, countermajoritarian difficulty, government, reflexivity, constitutional judges

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