Judges and democracy: between Ulysses and the mermaids’ songs

Abstract

This paper analyzes the democratic legitimacy of the decisions of the Colombian Constitutional Court regarding the judicial review of constitutional amendments. To achieve this goal, the author studies different approaches from political philosophy in the American doctrine, noting that the concept of democracy will have a great impact on the possibility of unconstitutional amendments. Thus, for a democratic substantial approach, there are certain values, -implied or not-, that cannot be modified and which must be safeguarded by the Constitutional Court. By contrast, from a popular democratic perspective, the existence of limits to the amendments, and their defense by a judge, unduly restricts popular participation and people’s sovereignty. Finally, the article concludes with a proposal for judicial review that reconciles the substantive values typical of a constitutional state, with the expansion of popular democratic spaces.