The first section takes up some main details of American constitutional history. At the end of that section and in section two, we concentrate on one constitutional doctrine in particular, judicial review. We argue that this doctrine rests, traditionally, on the foundational idea of a permanent tension between democratic institutions and basic rights. In section three, we deal with the problem just raised, by suggesting an alternative view of the relationship that exists between these fundamental constitutional elements. Here we attempt (...) to show that there is an essential principled harmony between basic constitutional rights and democratic majority rule. And we try to locate judicial review within this alternative conception. Then in section four and in the conclusion we discuss the institutional arrangements for the practice of judicial review in the light of this alternative conception. (shrink)

The Federalist Papers, even though written in 1787, are still one of the most referenced works regarding constitutional matters nowadays. The words of Hamilton, Madison and Jay, disguised under the pseudonym of Publius, are widely quoted, unfortunately not always in accordance with the authors’ intentions. This paper aims to: firstly, sketch the historical and political background of the essays to establish their existence as a period piece, and secondly, deconstruct the philosophical basis of the essays and at the same time (...) show how ignoring such a basis can lead to distortion of the arguments originally intended. (shrink)