Introduction

Abstract

The problem of constitutionalism and the legitimacy of its core institutions, in particular the judicial review of democratically-enacted legislation, is probably as old as the invention of the idea of a constitutional democracy in the beginning on the nineteenth century. The debate about the democratic legitimacy of constitutional courts and the authority to interpret the constitution has been going on for quite a while, and the emblematic decision of Marbury v. Madision merely settled and gave juristic form to an institutional design that was under discussion for a long time. More than 20 years before Marshall’s admission of the power to pronounce as null and void an enactment contrary to the U.S. Constitution, his arguments in support of judicial review of parliamentary legislation had already been raised by Alexander Hamilton in a sophisticated way, as we can read in one of the Federalist Papers:.