Constitutional democracy, constitutional interpretation and conflicting rights

Constitutional scrutiny of legislation implies that a constitutional court controls whether the legislator has done the “right” balancing when drafting legislation. Constitutional courts, however, do not always interpret the constitution in the same way as the legislator. By annulling legislation, the constitutional court holds that the legislator has not done the “right” balancing, that it has breached the constitution. The constitutional court decides this on the basis of those open-ended constitutional provisions, as interpreted by the constitutional court itself. The crucial question then is how constitutional courts should interpret the constitution. In the question how constitutional courts should interpret the constitution, the debate about democracy and constitutionalism revives. Are the constitutional courts the real decision makers in a modern democracy? In this paper I will attempt to find an answer to the question of how constitutional courts should interpret the constitution, respecting the “right” balance between the two conflicting rights, i.e. the right to democracy and the right to human rights. For I hope that such a “right” model of interpretation can guide the constitutional courts when they have to decide the other conflict, i.e. when balancing the fundamental rights in that particular case. I will therefore research what this idea of ‘constitutional democracy’ means and whether Habermas solves the problem of conflicting rights. Thereafter, I will scrutinise the three leading American models of constitutional interpretation for their compatibility with the idea of constitutional democracy.status: publishe