Constitutional courts were ascribed a pivotal role of protecting fundamental rights in contemporary democracies. Curiously enough, such an arrangement has always let itself be shaken by the ‘counter-majoritarian difficulty’. In response, constitutional theory periodically makes a new effort to tackle that objection. One influential defence has claimed that courts are not only insulated from electoral competition in order to guarantee the pre-conditions of majoritarian politics, but are deliberative forums of a distinctive kind: they are better located for public reason-giving. This belief has remained, from the normative point of view, largely under-elaborated and, at the empirical level, mostly untested. Instead of taking a stand on the old binary dispute about which institution is more legitimate to have the ‘last word’ on constitutional meaning, Mendes’ new book “Constitutional Courts and Deliberative Democracy” (2013) leaves that question suspended and elaborates on the large range of variations that can exist in constitutional courts’ performances.
Conrado Mendes is Professor-Doctor of constitutional law at the University of São Paulo (Brazil). He holds a PhD in legal theory at the University of Edinburgh (Scotland) and a PhD in political science at the University of São Paulo. His last book “Constitutional Courts and Deliberative Democracy” (Oxford University Press, Dec. 2013) "provides the first sustained analysis of the claim that courts are superior to legislatures as a forum for rational deliberation", as well as “proposes a new way of understanding the legitimacy of judicial review within the framework of deliberative theory”.