Who is Afraid of the Total Constitution?
the role that they do in constitutional democracies such as Germany. This is not the place to rehash debates about the legitimacy of constitutional courts reviewing democratically enacted legislation69 or to discuss the various doctrines of deference courts use to respond to and mitigate these concerns.70 But what Schmitt might have called a total constitution, what Forsthof has called a conception of the constitution as a juridical genome (juristisches Weltenei), and what Böckenförde has called a juristocracy may turn out to be nothing more than a constitution that institutionalizes more successfully than any constitution in German history a commitment to complete constitutional justice.
The debate about the appropriateness of endowing courts with the authority to strike down acts of the legislature remains alive. See R. DWORKIN, The Constitutional Conception of Democracy, in FREEDOM’S LAWS (1996), on the one hand, and J. WALDRON, The Constitutional Conception of Democracy, in LAW AND DISAGREEMENT (1999), on the other. 69
See e.g. Alexy, supra, note 13, 394-25; D. DYZENHAUS, THE UNITY OF PUBLIC LAW 6-19 (2004), in the Canadian context. See also Y. ARAI-TAKAHASHI, THE MARGIN OF APPRECIATION DOCTRINE AND THE PRINCIPLE OF PROPORTIONALITY IN THE JURISPRUDENCE OF THE ECHR (2002). 70