Constitutional Negotiations

Abstract

Constitutional courts in a number of new democracies have become very powerful institutions with a wide range of capacities. But how have they been able to achieve this power politically? This article examines the Hungarian and Russian constitutional courts in their political contexts and shows how these courts have both shaped the political environments in which they have worked and have been shaped by them. Rather than finding that the courts are an anti-democratic check on democratic governments, this analysis concludes that courts can be the strongest advocates of the demands of democratic citizenries against governments that stray from their promises. The theory of the `counter-majoritarian difficulty' developed to understand US judicial review, therefore, does not work well to explain the rise of the new constitutional courts.