The debate on the "Guardian of the Constitution": the problematic of the democratic legitimacy of the final decision regarding the constitutionality of norms

Abstract

The article discusses which conception of guard of the constitution, Kelsen’s or Schmitt’s, corresponds in a higher degree to the usual way of protecting constitutions and also which are the consequences related to the kind of protection that is offered regarding the question of the democratic legitimacy of decision about the constitutionality of norms. Kelsen’s and Schmitt’s interpretations of the notions “people” and “constitution” are presented together with the arguments that they developed to justify their positions on who should be the guardian of the constitution. Considering how decisions about the constitutionality of norms are justified, it is argued that even though Kelsen’s model of constitutional court is usually adopted, there is still an element of Schmitt’s conception of guard of the constitution to be identified.