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A Theoretical Case Against Judicial Review

Via ProfessorBainbridge, Jeremy Waldron of Yale presents a Case Against Judicial Review which even the author describes as “independent of both (judicial review’s) historical manifestations and questions about its particular effects” and “standing apart from arguments about the way judges exercise their power”. Fair enough, but very wrong in typical ivory tower fashion. From the summary:

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.

Based on these quotes, I argue that the professor is engaging in purely theoretical arguments regarding some, perhaps utopian, ‘democracy’. His conclusions have no bearing at all on American law.

The author proceeds to make familiar arguments supporting legislative primacy. Even in his definition of judicial review, he is quick to state that judicial review of executive action and administrative decisionmaking is acceptable. The elected executive is to be subject to the rule of law, although the elected legislature is to be exempted. He never makes a case for this disparate handling.

He gives an example of US federalism decisions, concluding “it is settled by voting among justices, … and whichever side has the most votes on the Court prevails. It is not clear that this is an appropriate basis for the settlement of structural terms of association among a free and democratic people.”

Here, I agree. The appropriate method is to change the Constitution if you want to change the structure. But most people who want to achieve a structural change are unwilling to subject their concept to the kind of debate that it takes to achieve that. So they endorse the ‘living constitution’ theories and make the changes through the courts. The problem isn’t that judges can overrule the legislature, the problem is that some judges think they should overrule the Constitution.

I think that Waldron consistently and deliberately miscasts his argument. Two examples:

First, “Should judges have the authority to strike down legislation when they are convinced that it violates individual rights?” is not a question that should occur to an American judge. The question is properly framed “Should judges have the authority to strike down legislation when they are convinced that it exceeds the authority granted Congress by the Constitution?” I would answer, “Yes”.

Second, “judicial review of legislation is inappropriate as a mode of final decisionmaking in a free and democratic society.” is purely inapplicable to the US. The decision of the Supreme Court may be overriden by two other groups. The penultimate decision is made by Constitutional amendment. The final decision is handed down by “twelve good men and true” who refuse to enforce a law they disagree with. His argument is also inapplicable because he seems to confuse a Constitutional Republic with a Democracy.

Even as an exercise in theoretical law (perhaps Philosophy would be a better name), this essay is wrongheaded in its simplistic reliance on ‘democracy’ as an unconditional good while ignoring that fact that a political system and its citizens are always going to be ordinary, corruptible human beings. The very same stumbling block that trips up the socialists.

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