Judicial Review, Rights, and Democracy (original) (raw)
Related papers
This article shows that judicial review has a democratic justification, although it is not necessary for democratic government and its virtues are controversial and often speculative. Against critics likeWaldron and Bellamy, it shows that judges, no less than legislators, can embody democratic forms of representation, accountability and participation.Hence, judicial review is not undemocratic simply because it enables unelected judges to over-rule elected legislators when people disagree about rights. Against recent defenders of judicial review, such as Eisgruber and Brettschneider, it shows that democratic arguments for judicial review do not require judges to be better at protecting rights than legislators.Hence a democratic justification for judicial reviewdoes not depend on complex and inevitably controversial interpretations and evaluations of judicial as opposed to legislative judgments. Democratic government does not demand special virtue, competence or wisdom in its citizens or their leaders. From a democratic perspective, therefore, the case for judicial review is that it enables individuals to vindicate their rights against government in ways that parallel those they commonly use against each other. This makes judicial review normatively attractive whether or not it leads to better decisions than would be made by other means. Is
Democracy and Judicial Review: Are They Really Incompatible?
Perspectives on Politics, 2009
This article shows that judicial review has a democratic justification, although it is not necessary for democratic government and its virtues are controversial and often speculative. Against critics like Waldron and Bellamy, it shows that judges, no less than legislators, can embody democratic forms of representation, accountability and participation. Hence, judicial review is not undemocratic simply because it enables unelected judges to over-rule elected legislators when people disagree about rights. Against recent defenders of judicial review, such as Eisgruber and Brettschneider, it shows that democratic arguments for judicial review do not require judges to be better at protecting rights than legislators. Hence a democratic justification for judicial review does not depend on complex and inevitably controversial interpretations and evaluations of judicial as opposed to legislative judgments. Democratic government does not demand special virtue, competence or wisdom in its citi...
Rights-Based Judicial Review: A Democratic Justification
SSRN Electronic Journal, 2000
ABSTRACT. This paper investigates the accusation that judicial review is undemocratic. It argues that the alleged tension between judicial review and democracy fails to account for the fact that the content of rights and their scope depends on societal convictions and moral judgments of the public. Such dependence suggests that rights-based judicial review can be described as an alternative form of democratic participation.
Judicial Review: A Democratic Defense
SEE NOTE: this version of this paper is a bit obsolete. The paper is now being framed as a work on democratic equality directly rather than on judicial review. Such an argument as this would still work, I think, but I believe that my argument on democratic equality is the more salient and useful contribution at the moment. Academic literature is still divided over whether judicial review is a legitimate political institution in a democracy. All conceptions of democracy involve both substantive and procedural components. The defenders of judicial review tend to argue that substantive commitments to self-government and equal effective power justify and limit the procedures of collective decision-making. Its opponents argue that those procedures determine the content of a society’s moral commitments. Here I contribute to the understanding of judicial review in the following three ways: first, I extract from the defenders of judicial review a conception of democracy whose core is the commitment to equal power and individual autonomy. This contributes an understanding of the concept of democracy common to major contributors to the liberal tradition. Further, I use this conception both to defend judicial review conditionally, and to show that its detractors miss something fundamental about the concept of collective and individual self-government.
Democracy, Popular Sovereignty, and Judicial Review
California Law Review, 1998
It is eminently appropriate that the Inaugural Lecture of the Brennan Center Symposium on Constitutional Law be delivered by Frank Michelman, for no one could be more deserving or more enlightening. It is also appropriate that Michelman should choose as his topic the tension between democracy and constitutionalism, for this tension has been the central problem of American constitutional theory since the onset of the twentieth century. Constitutional theory is an odd enterprise. In contrast to certain political philosophies that aspire to systematic analysis based on first principles, constitutional theory primarily seeks to expose and clarify the principles immanent within the practice of constitutional adjudication. For this reason constitutional theory cannot posit itself behind a "veil of ignorance... or within an "ideal speech situation." 2 Constitutional theory is always, so to speak, within our tradition and our history; it is parasitic on the very practice it seeks to explain. The achievements of revered and influential Justices, like William J. Brennan, whom we are here justly convened to honor, must therefore be taken as part of the data to be explained. In this sense, Michelman is right to place Brennan's work at the center of his investigation. I It is, however, a tricky business to expose and clarify the principles immanent within a practice. This is because sophisticated practices, like constitutional adjudication, tend to be complex and filled with unresolved internal tensions that leave ample room for critical disagreements. 3 Indeed, as Alasdair MacIntyre has written, "A living
Protecting Human Rights, 2003
This chapter focuses on competing characterizations of the nature of constitutional judicial review. It argues that the source of much scepticism of constitutional rights lies in the success of the legal realist critique of adjudication, which has made it impossible to describe the role of judges as simply applying rules made by constitution-makers. It reasserts the idea that, in enforcing rights, courts can possibly be taken to be enforcing rules (rather than exercising quasi-legislative judgment).
The Core of the Case against Judicial Review
The Yale Law Journal, 2006
This Essay states the general case against judicial review of legislation clearly and in a way that is uncluttered by discussions of particular decisions or the history of its emergence in particular systems of constitutional law. The Essay criticizes judicial review on two main grounds. First, it argues that there is no reason to suppose that rights are better protected by this practice than they would be by democratic legislatures. Second, it argues that, quite apart from the outcomes it generates, judicial review is democratically illegitimate. The second argument is familiar; the first argument less so. However, the case against judicial review is not absolute or unconditional. In this Essay, it is premised on a number of conditions, including that the society in question has good working democratic institutions and that most of its citizens take rights seriously (even if they may disagree about what rights they have). The Essay ends by considering what follows from the failure of these conditions.
Judicial Rights Talk: Defects in the Liberal Challenge to Constitutional Review
South African Journal on Human Rights, 2006
A treatment of recent criticism of judicial review concentrating on its theoretical consistency, scope and the use it makes of factual premises regarding the composition of judicial argument and the practice of democratic assemblies. Focussing on the work of Jeremy Waldron and Mark Tushnet and to a lesser extent that of Thomas Poole, it concludes that there are serious difficulties with the liberal challenge on each front.
Liberal politics and the judiciary: The supreme court and american democracy
Res Publica, 1997
In recent years, constitutional government has come to be identified largely with the judicial protection of individual rights. This characterisation of constitutionalism draws inspiration from both standard liberal concerns and the recent practice of the United States Supreme Court. Indeed, there has been a tendency amongst contemporary analytical American legal and political philosophers - most notably John Rawls and Ronald Dworkin and those influenced by, or critical of, their work - to conflate liberalism with the judgments of the Warren and Burger Courts. As a result, the philosophical treatment of a whole range of important social issues, from abortion and pornography, to racial and gender discrimination, has been framed to a remarkable degree by the concerns of American constitutional jurisprudence. Curiously, however, scholars outside America rarely have a direct knowledge of these landmark decisions or the reasoning underlying them. In consequence, a somewhat rarefied understanding of liberal principles and judicial decision making has emerged amongst many social and political philosophers, that rarely engages with the real contexts within which such ideals supposedly operate. It is the great merit of the books under review that in different ways they all seek to explore the actual theory and practice of the Supreme Court. In the process, they are led, albeit to varying extent, to critically examine the philosophical assumptions as well as the workings of the liberal interpretation of the American Constitution and its related view of democracy.