Dimitrios Kyritsis (University of Essex) has posted Does Liberal Constitutionalism Need an Alternative? on SSRN. Here is the abstract:
This paper argues for a middle way in the debate regarding the moral permissibility of constitutional review. It rejects both the view that constitutional review is a necessary feature of all legitimate constitutional orders, and the one stating that it is never permissible to give judges the power to veto primary legislation. Against the former it contends that constitutional review is not necessitated by the logic of constitutions. If it is permissible, it must be by virtue of the moral case that can be made in its favour; however, attempts to construct such a case invariably fall short; constitutional review is, at best, only contingently permissible. And against those who oppose constitutional review across the board the paper maintains that it is not necessarily an affront to political equality to give this kind of power to unelected judges. To be sure, elected institutions must have a significant say in policy. Yet, their contribution must fit into a constitutional arrangement also shaped by other important political considerations, which sometimes compete with political equality.