Combatting malfunction or optimizing democracy? Lessons from Germany for a comparative political process theory

Abstract Ely’s representation-reinforcing theory of judicial review is little known in German public law. Where it mentioned, most often to contest its relevance debates. Yet both jurisprudence and scholarship have a long tradition taking process-related issues seriously independently Ely. This makes Germany an interesting place not only examine the reception work but also analyze how where Elyian arguments surface what forms. In context Constitutional Court’s robust understanding own role character Basic Law as set substantive values or principles, such do appear part broader relative trust distrust, rather serve standardly justify intervention. The experience speaks problem noted by US critics operationalizing idea malfunction, which lies at heart his argument ensures survival current popularity. It suggests that malfunction something we can define abstract, nevertheless important for confronting us with question when distrust warrants intervention evidence does not.