Democracy ♦ Online 62 Va. J. Int’l L. Online 1 (2021)

Constitutional Courts in Defective Democracies

MICHAEL C. DORF

Constitutional courts exercising the power to invalidate the outputs of elected bodies can strengthen the liberal democratic character of the polities they serve in three main ways: by reinforcing representation; protecting human rights, particularly those of members of socially disadvantaged groups; and promoting the political system’s stability over time. These functions may be especially important in defective democracies. This Essay expounds the utility of constitutional review through the example of the United States, which has a democracy that is defective in various respects, especially its essentially unamendable allocation of disproportionate political power to residents of states with small populations and the ongoing impacts of racial inequality. Nevertheless, constitutional review is no panacea. In the face of extraordinary threats unleashed by a former President and his authoritarian movement, jurists in the United States must display courage to preserve the nation’s democratic order.