The Role of Constitutional Courts in Balancing Majority Rule and Minority Rights

Abstract

Majority rule and protection of minority rights are the opposites of constitutional democracy. A perfect situation exists where the people are the sovereign in the aspect of democracy, but on the other hand, targeting the individual forms, uncontrolled majoritarianism can destroy the rule of law at the expense of the individual. The constitutional courts, the protectors of constitutionalism, have the delicate role of balancing the popular sovereignty and the constitutional fundamental rights. The paper will analyze how the constitutional courts changed their role in resolving the tension between the democratic decision making and protection of the marginalized community. It discusses the role of the judicial review as a counter-majoritarianism mechanism to ensure constitutional morality, which is inconsistent with the majority. Using comparative jurisprudence of the United States, India, Pakistan, and South Africa, the research points to the judicial practices in the countries that strike a balance between democratic legitimacy and the substantive justice. The discussion concludes that courts that are constitutional ought to not be legitimate because they are deferring to the majority, but rather because their decisions are based on principle and ensure that all citizens are dignified and equal. Finally, the paper suggests that a sustainable constitutional democracy must be based on a harmonious relationship between majority rule and judicial safeguarding of minorities, and that this balance must reaffirm not only the democratic ethos, but also the supremacy of fundamental rights.