Constitutional Court Ruling on "Protected Schools" Sparks Debate on Judicial Deference
A recent ruling by the Constitutional Court concerning the "Protected Schools" project has prompted significant reflection on the role of judicial deference in constitutional law. The author, Cristóbal Aguilera Medina, a Law Professor at Universidad Finis Terrae, draws parallels to a nearly century-old debate between Hans Kelsen and Carl Schmitt regarding constitutional justice. Kelsen cautioned that when constitutional review relies on abstract concepts like equality, liberty, or justice, judges risk grounding legal validity in subjective moral and political interpretations. This underscores the importance of deference to the legislature as a key virtue of constitutional jurisdiction.
The majority opinion in the "Protected Schools" case appears to deviate from this principle. By invoking proportionality and fundamental rights, the court has addressed issues where the Constitution itself offers no singular, impartial answer to declare a law unconstitutional. While there may be valid political disagreements with the legislature's chosen solutions, the author argues that this is distinct from asserting that the Constitution outright prohibits them. The attempt to "juridify" such political disagreements does not eliminate political tension but rather shifts it from Congress to the Constitutional Court itself. Ultimately, the resolution then hinges on the moral and political views of the court's current majority, rather than the democratic process. The dissenting opinion by ministers Fernández, Mery, and Peredo is highlighted as an example of institutional prudence.
This case illustrates a recurring tension in constitutional jurisprudence: the balance between judicial review and legislative supremacy. When courts engage with policy-laden concepts like proportionality and fundamental rights, they risk becoming arbiters of political and moral disagreements, potentially undermining the democratic legitimacy of legislative outcomes. The shift of political contention from the elected legislature to an unelected judiciary can lead to outcomes determined by the philosophical leanings of a court's majority, rather than broad societal consensus. In the long term, such judicialization of policy may incentivize political actors to bypass democratic processes and seek favorable rulings, while also potentially leading to judicial overreach and a politicization of the courts themselves. Future constitutional design may need to consider clearer boundaries for judicial intervention in areas where legislative compromise is the most appropriate mechanism for resolving societal disputes.
AI-generated to prompt reflection — not editorial opinion, not advice, not a statement of fact. How this works.