Why the formal testing capacity of the courts is not sufficient to protect the underlying principles of an open democracy
Answers
Not having had sufficient caffeine - or maybe simply being in a cynical mood - as I endeavor to Answer, I confess that my own bias or viewpoint may have caused me to misunderstand the Question and now go off on a tangent.
I believe that to fairly Answer, one has to dig deeper than “law", legal tests, and the role of courts. One has to consider what “democracy" is and what its limitations are.
In my opinion, there is an implicit factor in the concept of “democracy" [or in an “open and free" society] and that factor is responsibility. Responsibility encompasses both a duty or obligation to oneself but also to one's society. I hasten to add that that, in considering this, a “society" is deemed to be as more than one individual working for a common purpose with another or others. In order to hold the “society" or entity together, there has to be “rules". These rules might be expressed or simply evolve and are demonstrated by behaviors and expectations.
By expecting law-makers and/or the courts to devise “rules" or “tests", we are passing responsibility on to an entity over which we have only a modicum of control. Instead of “certainty", we want “rigidity". We pay a lot of lip service to “justice" when what we really want is “law". Yet when we don't like the rules we bemoan and blame the rule-makers and will not or cannot see the inconsistency in our own thinking