헌법의 수호자로서 헌법재판소의 민주적 정당성

The democratic legitimacy of the constitutional jurisdiction through constitutional court has proved to be insufficient to convincingly democratically legitimize the granting of a final decision-making right in questions of the compatibility of laws with fundamental rights. Functional additional considerations are therefore needed in order to justify this right of last decision. The search is for compensatory functions of constitutional jurisdiction over the political process. It is to be asked whether the democratic procedure misses certain constitutionally necessary goals, the achievement of which can be better guaranteed by a constitutional final decision-making right. In part, the constitutional court is justified as a necessary element of minority protection. Although minorities are not in dire need of protection, especially those who also have the chance to become the majority. However, other things apply to groups that are completely outside the political system or whose interests are not represented in the political process at all. Constitutional task is to protect the political process and its functional conditions and to eliminate democratic dysfunctionalities. This task could only be assumed by a judicial authority, otherwise the democratic process itself would have to provide for its functional conditions. Another legitimization strategy is to offer the constitutional court the role of an authoritative interpreter of a positive natural law. Because the norms of justice and reason normalized, in particular in the fundamental rights, were included in the voting procedures that are so characteristic of the majority democracy. The constitutional court has the task in plural democracy of maintaining the minimum of an integrative function of the constitution, which is indispensable for democracy. Plural democratic societies are then less oriented toward political, social, economic, or cultural consensus, but derive their collective democratic identity and foremost from political conflict through the majority principle. Finally, a final justification strategy is to consider constitutional review rights as necessary for the effectiveness of the protection of fundamental rights, since the legislator can not guarantee this by itself. In contrast, the fundamental rights act as a corrective for political decisions. The guarantor of this limitation of the political activity of the legislature should therefore not be the parliament itself, but an independent body independent of the political power competition and committed only to the constitution.