Perhaps we should change our focus from constitutionalized practices of democracy to democratized practices of constitutionalism. Dworkin and Perry both seek to respond to democratic objections to judicial review by relying on a theory of the legitimacy constraints of democracy. According to this view, on some matters, legitimate democracy requires getting the right moral answers. Thus, democratic processes must be constitutionalized to ensure such right outcomes on fundamental moral matters. To the extent that judges are better positioned to engage in principled moral reasoning, the arguments continue, we ought to entrust them with ensuring the constitutionalized legitimacy conditions of democracy. I argued that this latter institutional move, however, threatened to simply revive the paternalist worries forcefully articulated by Learned Hand. Waldron's rights-based objection to rights-based judicial review, although not dispositive, provided further warning of the moral costs of treating fellow citizens as incapable of reasoning together about the content and proper scope of the legal rights required for democracy.

An alternative strategy for justifying judicial review that this chapter investigates is to understand a constitution itself as a product of true democracy, of real popular sovereignty. It is then up to the people, exercising their constituent power at the level of a constitutional assembly, to decide what particular institutional arrangements will best carry forward their collective ideals and decisions.