Political representation as a regulative ideal

Abstract

This article discusses Dimitrios Kyritsis’ critique of the ‘democratic objection’ to constitutional review. Kyritsis performs a misguided comparison between legislatures and the judiciary regarding their institutional roles qua participants in a representative system. The mistake rests on his reliance on a conception of the “trustee/proxy” divide that overlooks that both categories are regulative ideals, not reflections of how political practice operates. Such understanding of political representation, as well as of the corresponding institutional roles of courts and legislatures within a representative system, leads to a refutation of Kyritsis’ argument that the democratic objection falls short of justifying the rejection of constitutional review. After reconstructing Kyritsis’ discussion of the democratic objection, his arguments are rejected based on a revision of the notion of political representation. The revision is then shown to directly affect the argument in favour of constitutional review.