Representation through Argumentation? Constitutional Courts as Representatives of the People

This paper critically addresses the argument that constitutional courts may be democratically qualified as representatives of the people through its distinctive argumentative practice. I put into scrutiny Robert Alexy’s idea of argumentative representation and try to encapsulate it in the theoretical context of expansion of the senses of representation to non-electoral instances, such as participatory institutions of civil society, councils or social movements. Drawing examples from the Brazilian Supreme Federal Tribunal, I argue that this representative claim is situated at the heart of a paradox between the defense of fundamental rights and the necessity of a peculiar connection between the court and majoritarian interests. From a theoretical standpoint, the argument for a representative court seems to deepen the principle of distinction, as conceived by Bernard Manin, since it reinforces a mystical and esoteric foundation of judicial power that further distances this institution from the people, who happens to be devoid of minimally effective accountability mechanisms. I also argue that the idea is based on a flawed conception of deliberative democracy that aims at resolving the conflicts inherent to democracy itself, and tends to deepen social passivity. From a practical standpoint, I show how this misconceived idea is being incorporated by the rhetoric of Brazilian justices.