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  Rivista di losoa del diritto  [IV, 1/2015, pp. 23-36] Constitutional Rights, Democracy, and Representation Robert Alexy ISSN 2280-482X© Società editrice il Mulino Abstract. The article concerns the question of how the legal power of a constitutional court to overturn acts of parliament can be justified. This issue addresses the perennial problem of the relation between constitutional review and democracy. My reflections on this question refer to constitutional rights, a field in which the problem of constitutional review is posed with special urgency. The thesis of this paper is that constitutional review can be justified on the basis of principles theory on the one hand and on the basis of the tbeory of argumentative representa-tion on the other. The norm-theoretic basis of principles theory is the distinction between rules and principles. Rules are definitive commands, principles are optimization requirements. Prin-ciples as optimization requirements imply the principle of proportionality and vice versa. This is the main reason why constitutional rights essentially have the character of principles. The latter implies that constitutional rights are necessarily connected with balancing. A formal analysis of balancing shows that balancing is a form of rational argumentation. At this point, the question arises as to why the balancing arguments of the constitutional court ought to take priority over the arguments of the legislature. The answer to this question stems from the connection of three arguments: a formal, a substantive, and a procedural argument. The procedural argument is of special importance. It says that constitutional review can be justified if and only if it can be conceived, in my terms, as the argumentative representation of the people. Keywords:   Constitutional Review, Principles Theory, Balancing, Rational Argumentation, Ar-gumentative Representation. 1. The Problem of Constitutional Review The question of how the legal power of a constitutional court to overturn acts of parliament can be justified is the central theoretical issue in the field of constitutional review. This issue addresses the perennial problem of the relation between constitutional review and democracy.Hans Kelsen treats the question of constitutional review as a question of the legality of legislation. The parliament is empowered by the consti-  I should like to thank Stanley L. Paulson for help and advice on matters of English style.  Robert Alexy 24 tution qua  higher law to enact statutes, and if these laws are not issued in accordance with the procedural rules of the constitution or do not com-port with substantive constitutional constraints, in particular, constitutional rights, then these purported laws are unlawful (Kelsen 1929, 30-35). In this situation constitutional review is said to be indispensible in order to secure “complete legal bindingness” ( volle Rechtsverbindlichkeit ) ( ibid. , 78), re-quired by the “principle of the greatest legality possible” ( Prinzip möglich-ster Rechtsmäßigkeit ) (Kelsen 1931, 5). This picture of constitutional review is correct but incomplete. It says nothing about how the unconstitutionality of a parliamentary law enactment is established. This is a serious problem, for in many cases the question of constitutionality will be contested. In these situations two questions arise: a methodological or argumentation-theoret-ic question and an institutional question. The methodological question is  whether, in cases of disagreement, it makes sense to attempt to find the bet-ter answer – an answer that is better, for instance, than an answer arrived at by tossing a coin. The institutional question is whether it is compatible with democracy that a constitutional court be empowered to attempt to find this answer. My reflections on these questions will refer to constitutional rights, a field in which the problems of constitutional review are posed with special urgency. I will proceed in two steps. In a first step I will present principles theory as a model of constitutional argument. The second step will concern the idea of constitutional review as “argumentative representation” of the people. My thesis is that constitutional review is justified on the basis of principles theory on the one hand and on the basis of the theory of argumen-tative representation on the other. 2. Principles Theory 2.1. Rules and Principles The norm-theoretic basis of principles theory is the distinction between rules and principles. Rules are norms that require something definitively. They are definitive commands . Their form of application is subsumption. By con-trast, principles are norms requiring that something be realized to the great-est extent possible, given the factual and legal possibilities at hand. Thus, principles are optimization requirements (Alexy 2002, 47-48). Their form of application is balancing. This norm-theoretic distinction is connected with the interpretation of constitutional rights by way of the thesis that constitu-tional rights have essentially the character of principles (Alexy 2014). This does not mean, however, that provisions giving expression to constitutional rights cannot also express rules or elements of rules. An example of a con-  Constitutional Rights, Democracy, and Representation 25 stitutional rights rule in the German Constitution is Article 102 of the Basic Law, which says: “The death penalty is abolished.” Another example of a decision taken by the constitutional framers that has the character of a rule is Article 104 (2) (3) of the Basic Law, which runs as follows: “The police are not permitted to hold anyone arrested on their own authority beyond the end of the day after the arrest.” Still another example stems from the details of the highly complex regulation on the adoption of technical means for the acoustic surveillance of an accommodation in which the suspect is thought to reside, found in Article 13 (3)-(6) of the Basic Law. In these cases, the constitutional framers have passed on questions of balancing by establishing rules, and the interpreter of the Constitution is bound to apply them (Alexy 2002, 83). There exist, however, a great many cases in which an authoritative decision taken by the constitutional framers to decide the case is not at hand. Here, the balancing of principles is indispensible. This is also the case where a constitutional court transcends the wording of the constitution, as, for instance, the German Federal Constitutional Court did when, in a decision from 9 February 2010, it created a social right to an existential minimum (BVerfGE 125, 175 (222)). 2.2. Principles Character and Proportionality Analysis The definition of principles as optimization requirements leads straightaway to a necessary connection between principles and proportionality. The prin-ciple of proportionality ( Verhältnismäßigkeitsgrundsatz ), which in the last decades has received ever greater international recognition in the theory and practice of constitutional review (Beatty 2004; Stone Sweet and Mathews 2008), consists of three sub-principles: the principles of suitability, of neces-sity, and of proportionality in the narrower sense. All three sub-principles express the idea of optimization. Principles qua  optimization requirements require optimization relative both to what is factually possible and to what is legally possible. The principles of suitability and necessity refer to optimiza-tion relative to the factual possibilities. Optimization relative to the factual possibilities concerns the question of whether one position can be improved  without detriment to the other. Thus, the first two sub-principles require Pareto-optimality.Optimization relative to the factual possibilities consists in avoiding avoidable costs. Costs, however, are unavoidable when principles collide. Balancing then becomes necessary. Balancing is the subject of the third sub-principle of the principle of proportionality, the principle of proportionality in the narrower sense. This principle expresses what optimization relative to the legal possibilities means. It is identical with a rule which can be called  Robert Alexy 26 “Law of Balancing” (Alexy 2002, 102). It states: “The greater the degree of non-satisfaction of, or detriment to, one principle, the greater must be the importance of satisfying the other.” 2.3. Law of Balancing The Law of Balancing shows that balancing can be broken down into three stages. The first stage involves establishing the degree of non-satisfaction of, or detriment to, the first principle. This is followed by a second stage in  which the importance of satisfying the competing principle is established. Finally, in a third stage, it is determined whether the importance of satisfy-ing the latter principle justifies the detriment to or non-satisfaction of the former. This shows that balancing presupposes that it is possible to make rational judgments about, first, the intensity of interference, second, the de-gree of importance, and, third, their relation to each other.Critics of balancing like Jürgen Habermas and Bernhard Schlink contest the rationality of such judgments (Habermas 1996, 259; Schlink 2001, 460-462). The question of whether balancing is a form of rational argumentation cannot be discussed here in any detail (Alexy 2010a). I will confine myself to a brief look at two cases illustrating that and how rational judgments about intensity of interference, degree of importance, and their relation to each other are possible. A rather simple case is the decision of the German Federal Constitutional Court on health warnings (BVerfGE 95, 173). The Court char-acterizes the duty of tobacco producers to place health warnings respecting the dangers of smoking on their products as a relatively minor or light inter-ference with the freedom to pursue one’s profession. By contrast, a total ban on all tobacco products would count as serious interference. Between such minor and serious cases, others of moderate intensity of interference can be found. In this way, a scale can be developed with the stages “light”, “moder-ate”, and “serious”. Our example shows that valid assignments following the scale are possible. The same is possible on the side of the competing reasons. The health risks resulting from smoking are great. Therefore, the reasons jus-tifying the interference weigh heavily. If in this way the intensity of interfer-ence is established as minor, and the degree of importance of the reasons for the interference as high, then the outcome of examining proportionality in the narrower sense may well be described – as the German Federal Constitu-tional Court has in fact described it – as “obvious” (BVerfGE 95, 173 (187)).The teachings of the tobacco judgment are corroborated by looking to oth-er cases. A far more difficult case is presented by the decision of the Federal Constitutional Court on electronic data screening. A student with Moroccan citizenship and Islamic faith brought a constitutional complaint against an
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