Political constitutionalism and the judicial role: A response (original) (raw)
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Eastern Africa Law Review, 2004
Introduction What is the Constitution? Is the Constitution written, living, or both? How should the Constitution be interpreted? Constitutional interpretation is one of the more difficult tasks that the judiciary is called upon to perform.' Firstly, the fact that the Constitution is both a political charter and a legal document makes its interpretation a matter of great political significance, and sometimes controversy. Secondly, the courts' interpretation of the Constitution by way of judicial review is equally controversial as it is essentially countermajoritarian. A non-elected body reviewing and possibly overruling the express enactments and actions of the elected representatives of the people would raise the issue of legitimacy. Thirdly, however defined, the Constitution is an intricate web of text, values, doctrine, and institutional practice. It lends itself to different interpretations by different, equally wellmeaning people.i Fourthly, the Constitution contains con...
Depoliticizing Administrative Law
Ideology, Psychology, and Law, 2012
A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized in both the federal courts of appeals and the Supreme Court. These results hold for both (a) judicial review of agency interpretations of law and (b) judicial review of agency decisions for “arbitrariness” on questions of policy and fact. The empirical results raise an obvious question: what might be done to depoliticize administrative law? Three sets of imaginable solutions have promise: (1) self-correction without formal doctrinal change, produced by a form of “debiasing” that might follow from a clearer judicial understanding of the current situation; (2) doctrinal innovations, as, for example, through rethinking existing deference principles and giving agencies more room to maneuver; and (3) institutional change, through novel voting rules and requirements of mixed panels. An investigation of these solutions has implications for other domains in which judges are divided al...