Courts as Guarantors of Democracy

This chapter discusses the judicial oversight of democracy. Three cases indicate how courts act as guarantors of constitutional democracy, suggesting ways they could react to current populist challenges. First, from India, the basic structures decisions set forth the principle that certain constitutional changes, even if procedurally proper, can go too far in undermining the fundamental character of a democratic order. This series of decisions also claims for the judiciary the power and duty to judge when an amendment oversteps this line. Next, the South African Constitutional Court's decision rejecting the draft constitution to replace the apartheid system establishes that protections against untrammelled majority rule are among these basic features of constitutional democracy. Last, a decision of the Constitutional Court of Colombia to disallow a president from running for a third term goes to how courts can protect competition in the political process. Rejecting a properly enacted constitutional amendment that would have permitted a president to run for a third term, the Court feared lack of rotation in office would chill political debate and contestation. Together, these decisions articulate a distinct challenge for apex courts confronting a challenge to the democratic process itself.