A Little Less Conversation, a Little More Action

This chapter criticizes constitutional dialogue theories, which treat constitutional review as an iteration in a dialogic process. Such theories are often invoked to explain the moral appeal of so-called weak constitutional review, which reserves the ‘last word’ on constitutional matters for the legislature. It is argued that constitutional dialogue theories stress the discursive element of judicial decisions at the expense of their authoritative impact and thus cannot adequately account for the limits we tend to impose on the courts’ reviewing power. More fundamentally, they overlook that political orders are not there to discover moral truth. First and foremost, they go well when they do not wrong us. Accordingly, constitutional review is not judged primarily by its discursive value, its ability to enhance public—and more specifically legislative—deliberation, but rather by its ability to thwart infringements of our fundamental rights.