Most generally, constitutions provide two concurrent forms of responsibility, one democratic (through elections) and the other hierarchical (appointment by superior organs of political power). The relationship between representation and political judgment is molded by choices between these forms. Consider, for example, the quite different ways in which the US and European constitutions locate the positions of judges, the clearest example of representatives assigned particular responsibilities of judgment. In the United States, many local and state judges are elected just like any other political representative and are therefore directly responsible to the people (see Kelsen 1999). In Europe, the judge is accountable only to the law and must not defer to the opinions of the people (Friedrich 1963, Kelsen 1992). In the US case, the role of the judge as representative of law often clashes with the political responsiveness required of an elected representative—which perhaps explains why many states seek to increase judges’ independence by declaring elections to be nonpartisan (Thompson 1987), and certainly explains why higher courts are insulated from direct representative accountability. In the European case, however, the democratic legitimacy of judges is borrowed entirely from representative bodies that create the law, and judgment is viewed as limited to the application of law. In this way, European constitutions preserve the democratic element of representation within the judiciary, but at the cost of conceiving judges’ powers of judgment as the application of rules.
Most generally, constitutions provide two concurrent forms of responsibility, one democratic (through elections) and the other hierarchical (appointment by superior organs of political power). The relationship between representation and political judgment is molded by choices between these forms. Consider, for example, the quite different ways in which the US and European constitutions locate the positions of judges, the clearest example of representatives assigned particular responsibilities of judgment. In the United States, many local and state judges are elected just like any other political representative and are therefore directly responsible to the people (see Kelsen 1999). In Europe, the judge is accountable only to the law and must not defer to the opinions of the people (Friedrich 1963, Kelsen 1992). In the US case, the role of the judge as representative of law often clashes with the political responsiveness required of an elected representative—which perhaps explains why many states seek to increase judges’ independence by declaring elections to be nonpartisan (Thompson 1987), and certainly explains why higher courts are insulated from direct representative accountability. In the European case, however, the democratic legitimacy of judges is borrowed entirely from representative bodies that create the law, and judgment is viewed as limited to the application of law. In this way, European constitutions preserve the democratic element of representation within the judiciary, but at the cost of conceiving judges’ powers of judgment as the application of rules.
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