This article provides an exploration of the relationships between a procedural account of epistemic democracy, illegitimate laws and judicial review. I first explain how there can be illegitimate laws within a procedural account of democracy. I argue that even if democratic legitimacy is conceived procedurally, it does not imply that democracy could legitimately undermine itself or adopt grossly unjust laws. I then turn to the legitimacy of judicial review with regard to these illegitimate laws. I maintain (...) that courts do not have a moral privilege on the overthrow of illegitimate laws; in this respect the refusal of royal assent has the same status. I also explain how the rule of the clear mistake fails to restrict the action of courts to only illegitimate laws. Finally, I argue for the positive epistemic inputs of weak judicial review. (shrink)

In his thought-provoking book, Why Law Matters, Alon Harel defends two key claims: one ontological, the other axiological. First, he argues that constitutions and judicial review are necessary constituents of a just society. Second, he suggests that these institutions are not only means to the realization of worthy ends, but also non-instrumentally valuable. I agree with Harel that constitutions and judicial review have more than instrumental value, but I am not persuaded by his arguments in support (...) of this conclusion. I argue that Harel’s ontological claim is unsustainable, and that his axiological claim needs revision. Regarding the former, I show that constitutions and judicial review are only contingent constituents of a just society. Regarding the latter, I contest Harel’s specific account of the value of constitutions and judicial review. Harel grounds the non-instrumental value of constitutions in freedom as non-domination but, upon scrutiny, it emerges that their non-instrumental value lies elsewhere. Further, Harel holds that the non-instrumental value of judicial review stems from its embodying a right to a fair hearing. I argue that this right has non-instrumental value only under a particular set of circumstances. I thus conclude, contrary to Harel, that the non-instrumental value of judicial review is contingent on those circumstances obtaining. (shrink)

This paper examines Jeremy Waldron’s ‘core case’ against judicial review. Waldron’s arguments, it shows, exaggerate the importance of voting to our judgements about the legitimacy and democratic credentials of a society and its government. Moreover, Waldron is insufficiently sensitive to the ways that judicial review can provide a legitimate avenue of political activity for those seeking to rectify historic injustice. While judicial review is not necessary for democratic government, the paper concludes that Waldron is (...) wrong to believe that it is a threat to democracy. (shrink)

In my article, I want to focus on the critique Cristina Lafont makes to expertocracy and epistocracy, mainly through the institution of judicial review, to which she dedicates chapter 7 and part of...

In this lecture Justice Breyer examines three classical criticisms of constitutional judicial review. Those criticisms say that a grant to unelected judges of the power to set aside legislation as contrary to a written constitution leads to judicial decision-making that is (a) undemocratic, (b) subjective, and impractical. Justice Breyer describes features of the constitutional decision-making that do not dictate results in individual cases, but none the less hold the judges' 'subjective' will in check. He also describes necessary (...) judicial efforts to focus upon considerations of administrative practicality. The description seeks, not to refute the criticisms in their entirety, but to help evaluate the extent to which those criticisms militate against the adoption of a system of constitutional judicial review. (shrink)

Americans cannot live with judicial review, but they cannot live without it. There is something characteristically American about turning the most divisive political questions - like freedom of religion, same-sex marriage, affirmative action and abortion - into legal questions with the hope that courts can answer them. In Judicial Review in an Age of Moral Pluralism Ronald C. Den Otter addresses how judicial review can be improved to strike the appropriate balance between legislative and (...) judicial power under conditions of moral pluralism. His defense of judicial review is predicated on the imperative of ensuring that the reasons that the state offers on behalf of its most important laws are consistent with the freedom and equality of all persons. Den Otter ties this defense to a theory of constitutional adjudication based on John Rawls's idea of public reason and argues that a law that is not sufficiently publicly justified is unconstitutional, thus addressing when courts should invalidate laws and when they should uphold them even in the midst of reasonable disagreement about the correct outcome in particular constitutional controversies. (shrink)

This paper argues that, according to a specific conception of the ideals of constitutional democracy - deliberative democratic constitutionalism - the proper function of constitutional review is to ensure that constitutional procedures are protected and followed in the ordinary democratic production of law, since the ultimate warrant for the legitimacy of democratic decisions can only be that they have been produced according to procedures that warrant the expectation of increased rationality and reasonability. It also contends that three desiderata for (...) the institutionalization of the function of constitutional review follow from this conception: structural independence, democratic sensitivity and the maintenance of legal integrity. Finally, evaluating three broadly different ways of institutionalizing constitutional review - solely in appellate courts, in deliberative constitutional juries of ordinary citizens and in a combined system of constitutional courts and civic constitutional amendment fora - it argues that the third arrangement would perform best at collectively fulfilling the sometimes antithetical desiderata. (shrink)

This article shows that judicial review has a democratic justification even though judges may be no better at protecting rights than legislatures. That justification is procedural, not consequentialist: reflecting the ability of judicial review to express and protect citizen’s interests in political participation, political equality, political representation and political accountability. The point of judicial review is to symbolize and give expression to the authority of citizens over their governors, not to reflect the wisdom, trustworthiness (...) or competence of judges and legislators. Above a threshold level of competence – which may be impossible to determine a-priori – the legitimacy of judicial review does not turn on the special wisdom, virtue or personal qualities of judges. Instead, it reflects the importance that democracies properly attach to the ordinary virtues and competences of individuals in justifying power and authority. Hence, this article takes issue with the defence of judicial review in Eisgruber and Brettschneider, as well as with the critiques of judicial review found in Waldron and Bellamy. (shrink)

This essay defends judicial review on procedural grounds by showing that it is an integral part of American democracy. Critics who object to judicial review using counter-majoritarian and epistemic arguments raise important concerns that should shape our understanding of the Supreme Court. Nevertheless, critics often fail to account for the formal and informal mechanisms that overcome these difficulties. Critics also fail to show that other branches of government could use the power of Constitutional interpretation more responsibly. (...) By defending judicial review in the American context, this essay demonstrates that judicial review is not inherently undemocratic. (shrink)

In this paper the author discusses the legitimation of judicial review of legislation. He argues that such a legitimation is not just a moral matter but is to be considered more generally in terms of societal acceptability, since it is based on a wide range of reasons including moral, social and pragmatic concerns. Moreover, the paper stresses that the legitimation of judicial decisions should be properly viewed in a circular perspective, so that the relationship between legislators and (...) judges cannot be reduced to an absolute supremacy of those who are democratically elected over those who apply the law. On the contrary, the law is constantly made, adapted and developed in legal practice and legal decisions are basically legitimated through several processes of deliberative communication. (shrink)

Judicial review (richterliches Prüfungsrecht), administrative review (Verwaltungsgerichtbarkeit), and constitutional review (Verfassungsgerichtsbarkeit) are three different ways in which the judiciary has sought to control the executive and legislative powers of the state. Historically and functionally they are closely linked. I intend to discuss them in their German context, focussing, in particular, on the Weimar Republic, that is to say, on the period between 1919 and 1932. Although I shall not be addressing the highly interesting parallels with the (...) U.S. Supreme Court, or with the comparable courts in Italy, France, and, especially, Austria, I should like to invite attention to them, for there is really no Sonderweg in Germany as far as these developments are concerned. (shrink)

In India, judicial review is not a static phenomenon. It has ensured that the Constitution is the supreme law of the land, and in situations when a law impinges on the rights and the liberties of citizens, it can be pruned or made void. This is a collection of scholarly essays demonstrating the different facets of judicial review based on the vast area of comparative constitutional law. Importantly, it honours the body of work of Upendra Baxi, (...) legal scholar and author, whose contributions have shaped our understanding of legal jurisprudence and expanded the scope of social transformation in India. This volume recognizes his role as an Indian jurist. Various constitutional law experts come together to reflect on his expositions on the role of the apex court, judicial activism, accountability of judiciary, laws on surrogacy and adultery and so on. (shrink)

How should courts interpret the law? While all agree that courts must be objective, people differ sharply over what this demands in practice: fidelity to the text? To the will of the people? To certain moral ideals? In Judicial Review in an Objective Legal System, Tara Smith breaks through the false dichotomies inherent in dominant theories - various forms of originalism, living constitutionalism, and minimalism - to present a new approach to judicial review. She contends that (...) we cannot assess judicial review in isolation from the larger enterprise of which it is a part. By providing careful clarification of both the function of the legal system as well as of objectivity itself, she produces a compelling, firmly grounded account of genuinely objective judicial review. Smith's innovative approach marks a welcome advance for anyone interested in legal objectivity and individual rights. (shrink)

Courts are sometimes called upon to review a law or some other official act of government to determine its constitutionality, its reasonableness, rationality, or its compatibility with fundamental principles of justice. In some jurisdictions, this power of judicial review includes the ability to ‘strike down’ or nullify a law duly passed by a legislature body. This article examines this practice and various criticisms of it, including the charge that it is fundamentally undemocratic. The focus is on the (...) powerful critique mounted by Jeremy Waldron, the foremost philosophical opponent of judicial review. (shrink)

The general assumption that underlines Richard Posner’s argument in his book Not a Suicide Pact is that decisions concerning rights and security in the context of modern terrorism should be made by balancing competing interests. This assumption is obviously correct if one refers to the most rudimentary sense of balancing, namely, the idea that normative decisions should be made in light of the importance of the relevant values and considerations. However, Posner advocates a more specific conception of balancing, both substantively (...) and institutionally. Substantiality, he argues for balancing based on a consequential moral theory that rejects the ideas of deontological rights and particularly absolute or very weighty deontological rights. More specifically, it seems that Posner assumes a utilitarian theory that also rejects intrinsic concern for distributive justice. Institutionally, Posner argues that this method of reasoning should be adopted by judges when interpreting the constitution. These substantive and institutional background assumptions are of course controversial, but I do not dispute them in this Article. My critique concerns Posner’s conclusions based on these assumptions. Posner’s main claim is that given the magnitude of the danger of modern terrorism, even a small probability that an act of terror may occur justifies extreme anti-terror measures. While the general idea that even a slight risk of very serious harm justifies significant cost is plausible, I doubt Posner’s assumptions regarding the cost of various means of preventing these dangers, his claim that judicial review in this context should be very limited, and his suggestion of an absolute formal prohibition that is not strictly enforced in the context of measures such as interrogational torture. (shrink)

This article addresses an issue overlooked in most of the literature on judicial review: the legitimacy of judicial review of a constitution's federal and structural provisions. Debates about the legitimacy of judicial review—at least as conducted throughout the Commonwealth—are usually focussed on rights. These debates appear to assume that the power of courts like the Australian High Court and the Canadian Supreme Court to interpret and enforce federal and structural provisions is unproblematic. This article (...) tests that assumption and concludes that those who hold democracy-based objections to constitutional rights should seriously reconsider, and perhaps oppose, federal and structural judicial review as well. (shrink)

In an earlier article, it was established that the rules which govern the relations between universities and their students may find their legal source in prescription, royal charter, parliamentary legislation or contract. This article compares judicial review of student rules according to these different sources, whether this review forms part of public law (the review of byelaws, delegated legislation or the expression of other statutory rule‐making powers) or of contract law (as a matter of the fairness (...) of the rules as terms of the student contract or by the inherent qualification of any contractual rule‐making power in a university by reference to reasonableness). Both similarities and differences in these different types of review are identified and their implication in the student context assessed (notably, as to the exclusivity of the visitorial jurisdiction in the case of chartered universities). Finally, it is argued that the compatibility of student rules with students' human rights may be relevant to review in contract law as well as in public law as a result of the very inclusive nature of the grounds of this review. (shrink)

Does the effective protection of constitutional rights require a system of robust judicial review? This differs from the question of whether judicial review is democratically legitimate, although the two are often merged. The dominant liberal constitutional discourse concerning the requirement of judicial review has arguably suffered from a degree of insensitivity to the actual effects of specific judicial review systems. In contrast to a fact‐insensitive approach, I suggest that the ‘matrix’ of rights‐protection (...) in any specific system of judicial constitutional review must incorporate two types of calculation. The first must compare incidences of the invalidation of ‘wrong’ statutes (on the ‘gains’ side) with invalidations of ‘right’ statutes and cases of upholding ‘wrong’ statutes (on the ‘losses’ side). The second looks at the gains and losses resulting from the very existence of the system of judicial review (rather than the specific cases that have been upheld or invalidated). It thus recognizes the deep disagreement between individuals about their preferred interpretations of constitutional rights. Under some conditions, the results of this matrix may be modified by arguments about an overlap in preferred articulations of constitutional rights, prudence, and the deliberative nature of the courts that exercise constitutional review, and the paper concludes with a discussion of how this can occur. We do not have to have a court that will strike down laws—a court with the power of judicial review—to have a vibrant language of fundamental rights available to us. (shrink)

Negative externalities pervade immigration law. For example, immigration rules can cause negative economic externalities by barring foreign nationals whose participation would make labor markets more efficient. On the other hand, sweeping executive-branch measures to assist immigrants may unduly expand executive power and yield adverse effects on governance. This essay divides immigration's negative externalities into three categories: economic, relational, and rhetorical. It then argues for specific legal and policy measures, including tailored executive discretion over deportation; more robust court review of (...) immigration restrictions that affect foreign nationals outside the United States; and classifying deportation of lawful permanent residents of the United States as punishment requiring advance notice that specific acts can prompt removal, like the notice the Constitution's Ex Post Facto Clause requires for criminal laws. (shrink)

'A clear, readable and fair account of the development of judicial review.'-Ashley Montagu.

Jeremy Waldron is well known for his disdain of U.S. jurisprudential doc- trine that allows courts to invalidate democratically enacted legislation on the ground it violates certain fundamental constitutional (and quasi-moral) rights. He believes that where disagreement on the relevant substantive is- sues is widespread among citizens and officials alike, it is illegitimate for judges to impose their views on the majority by invalidating a piece of enacted law. Even if we assume, plausibly enough, there are objective moral constraints on (...) what restrictions on behavior may be enacted into law, judges have no privileged access to the objective truth and must, like everyone else, rely on their own subjective intuitions and views. Given that judges are hence no more likely than citizens or legislators to reach the correct decision about what morality requires, these disagreements should be democratically resolved. As he puts it, if disagreement about rights is to be sorted out by counting heads, it should be the heads of citizens who have ultimate sovereignty in a democracy, rather than those of unelected judges, that ought to count.In this essay, I consider Wilfrid Waluchow’s response to Waldron’s argument in his outstanding new book, A Common Law Theory of Judicial Re- view, in which he attempts to provide the practice of judicial review with something akin to the foundation that justifies allowing judges authority over the development of the common law. I will begin with a short explication of Waldron’s argument and then consider Waluchow’s objections to Waldron, as well as Waluchow’s living-tree conception of a common-law constitution with content that evolves through a common law approach to reasoning in constitutional disputes.Resumen:A Jeremy Waldron se le conoce por el desprecio que ha manifestado con relación a la doctrina constitucional estadounidense que permite a los tribunales invalidar legislación que ha sido promulgada de manera democrática, dado que según Waldron lo anterior constituye una violación a ciertos derechos constitucionales (y cuasi-morales). Él piensa que si existe un desacuerdo importante entre los ciudadanos y oficiales del derecho en relación con cierto tema sustantivo, es ilegítimo que los jueces impongan sus puntos de vista sobre los de la mayoría de la población al invalidar una ley promulgada. Incluso si suponemos, de manera lo suficientemente plausible, que existen limitantes morales objetivas sobre las restricciones que el derecho puede contemplar en relación con el comportamiento de los ciudadanos, los jueces no gozan de un privilegio especial con el que puedan acceder a estas verdades objetivas y deben, como todos los demás, basarse en sus propios puntos de vista e intuiciones subjetivas. Entonces, dado que los jueces al igual que los ciudadanos y legisladores no pueden llegar a mejores y correctas decisiones en relación con lo que exige la moralidad, estos desacuerdos se deben decidir de manera democrática. Como sostiene Waldron, si los desacuerdos sobre los derechos se deben decidir con un recuento de manos, deben ser las manos de los ciudadanos, los cuales tienen la soberanía última en una democracia, no así los jueces que no son electos.En este artículo, el autor analiza la respuesta de Wilfrid Waluchow a los argumentos de Waldron, los cuales se encuentran plasmados en el nuevo e interesante libro: A Common Law Theory of Judicial Review, donde Waluchow intenta justificar la práctica del judicial review a través de algo parecido a la justificación que otorga a los jueces autoridad para desarrollar el common law. El autor inicia con una breve explicación del argumento de Waldron y continúa con las objeciones de Waluchow a Waldron, entre las cuales destaca la concepción de Waluchow de la Constitución como árbol viviente. (shrink)

Democratic theorists often distinguish between two views of democratic procedures. ‘Outcomes theorists’ emphasize the instrumental nature of these procedures and argue that they are only valuable because they tend to produce good outcomes. In contrast, ‘proceduralists’ emphasize the intrinsic value of democratic procedures, for instance, on the grounds that they are fair. In this paper. I argue that we should reject pure versions of these two theories in favor of an understanding of the democratic ideal that recognizes a commitment to (...) both intrinsically valuable democratic procedures and democratic outcomes. In instances in which there is a conflict between these two commitments, I suggest they must be balanced. This balancing approach offers a justification of judicial review on the grounds that it potentially limits outcomes that undermine democracy. But judicial review is not justifiable in any instance in which a bad democratic outcome results from democratic procedures. When the loss that would result from overturning a democratic procedure is greater than the gain to democracy that would result from ensuring against an undemocratic outcome; judicial review is not justifiable. Loss or gain to democracy is defined by the negative or positive impact of each action on the core democratic values of equality and autonomy, aspects of the democratic ideal. Even when judicial review is justified, the fact that it overturns intrinsically valuable procedures suggests that such review is never ideal from the standpoint of democracy. (shrink)

Landmark Supreme Court rulings determine American law by adjudicating among competing reasonable interpretations of basic political rights. Jeremy Waldron argues that this practice is democratically illegitimate because what determines the content of basic rights is a bare majority vote of an unelected, democratically unaccountable, elitist body of nine judges. I argue that Waldron's democratic critique of judicial review has implications for real-world reform, but not the implications he thinks it has. He argues that systems of legislative supremacy over (...) the judiciary are democratically preferable to the American one. I provide reasons why his argument is unsound and explain that, properly construed, Waldron's premises support implementing a system where ordinary citizens chosen by lottery participate in a deliberative mini-public to vote on which reasonable interpretation of a basic political right will become the law of the land. (shrink)

By giving legislatures broad power to override constitutional rights provisions, recent Commonwealth rights charters are said to create a new ‘weaker’ model of constitutional rights protection than the traditional US model of strong-form judicial review. The article, however, argues that to date such powers have rarely if ever been used by Commonwealth legislatures, and thus have had little direct effect on the strength of judicial review in Commonwealth countries. At most, such powers may have had some (...) indirect effect on the strength of review in the Commonwealth, compared to the United States, by encouraging greater deference by courts such as the Supreme Court of Canada to attempts by parliament to engage in ‘dialogue’ via ordinary legislative means. This more limited—and contingent—view of Commonwealth–US constitutional difference also has clear practical implications, the article suggests, for ongoing attempts to ‘borrow’ or adopt the new Commonwealth constitutional model elsewhere. (shrink)

Judicial review of statutes on constitutional grounds is affected by a cluster of doctrinal practices that are generally accepted, but not very well explained, by the courts and not entirely consistent with each other. Courts usually judge statutes rather than as written; 1 they favor of valid applications of statutes from invalid or possibly invalid applications when possible; 2 and they interpret statutes in ways that avoid constitutional difficulty. 3 These overlapping practices presumably are intended to preserve legislation, (...) and hence are associated with a modest conception of the role of courts in government. Yet they are not always modest in operation. 4. (shrink)

At first, despairing of justifying the Court's new-found rights as the products of interpreting the Constitution, many of the Court's supporters bit the bullet and proclaimed the legitimacy of "noninterpretivism." As an approach to justifying purportedly constitutional decisions, however, noninterpretivism's oxymoronic quality made it an easy target for the Court's detractors, who asserted that noninterpretivism was nothing more than rule by a federal judiciary unrestrained by any positive law.

This article engages legal positivism conceived of as a political project rather than as a descriptive account of law. Jeremy Waldron’s ‘democratic jurisprudence’ represents such a politicized legal positivism—a normative argument for legal positivism rather than a non-normative claim that legal positivism is true. Unsurprisingly, the essential institutional elements of this democratic jurisprudence turn out to be the familiar features of classical legal positivism, and the case Waldron makes against judicial review grows out of his overarching political position. (...) But, consequently, if there are reasons to doubt the strength of Waldron’s case against judicial review, there are surely reasons to doubt the normative bases of his case for positivism, and in turn, descriptive or conceptual positivism more generally. This article investigates this claim, noting that Waldron’s political case for positivism is based on Kantian notions about moral autonomy given circumstances of moral disagreement, but that Waldron’s conclusions about the role of judges undermine both these Kantian foundations and the aims of democratic jurisprudence. While Waldron’s arguments revive a tradition of political positivism that goes back to Bentham, engagement with those arguments suggests that legal positivism ultimately must embrace a radical democratic form of anti-constitutionalism. (shrink)

In No Place for Ethics, Hill argues the Supreme Court has an overriding obligation to ground its judicial review responsibilities not only in the Constitution but also in ethics, understood as the Constitution's ultimate justification. The text discusses a response to the question basic to all human beings: how should I behave?

Four questions dominate normative contemporary constitutional theory: What is the purpose of a constitution? What makes a constitution legitimate? What kinds of arguments are legitimate within the process of constitutional interpretation? What can make judicial review of legislation legitimate in principle? The main purpose of this text is to provide one general answer to the last question. The secondary purpose is to show how this answer may bear upon our understanding of the fundamental basis of constitutional law. These (...) two purposes should suggest particular answers to the first three questions. (shrink)

I argue that disputes within constitutional theory about whether recent supreme court decisions exceed the scope of legitimate judicial review and disputes within legal theory about the nature and determinacy of law are best seen and assessed as disputes over the nature of legal interpretation. I criticize the interpretive assumptions on which these disputes generally depend and defend a theory of interpretation which tends to vindicate the determinacy of law even in hard cases and the style of recent (...) court decisions which many critics find troublesome. (shrink)