The Guardian of the Constitution

Abstract

Abstract This chapter analyses the guardian of the constitution, the third principal mechanism of militant democracy. Typically embodied by the constitutional court, the guardian holds pro tempore final authority on constitutionality. This role is vital for militant democracy: since neither unamendability nor political rights restrictions are self-enforcing, some constituted power must adjudicate on them. The chapter argues that guardianship should rest with a branch independent of the executive and legislative branches. By representing ‘the people’ in a fundamentally different manner from those branches, the guardian can effectively counterbalance imperfections of their representations. This serves as a robust check on the potential pathologies of those branches, thereby safeguarding the democratic ideals of ‘the people’ and protecting against threats like legal revolution and democratic cannibalism.