Counter-majoritarian difficulty. Theoretical approaches in the United States and Latin America

Abstract

The object of this work is to present a theoretical survey of the main arguments in favor of and against judicial review. Analysis of the scope of, and substantial differences between, these two positions may contribute to understanding and contemplation of approaches that revalue and affirm democratic principles, but also of those based on the pre-eminence of basic rights and the protection of these as the corner-stone of any democratic order. We look at some contributions of political science to this discussion, through democratic theory, as well as positions which address the politicization of justice. We consider that analysis through these approaches enriches understanding of the debate, given that legal doctrine regarding judicial interpretation is contrasted with scopes of the democratic principles of legitimacy and republicanism