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Samuel Freeman - One of the best experts on this subject based on the ideXlab platform.
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Constitutional democracy and the legitimacy of Judicial Review
Law and Philosophy, 1990Co-Authors: Samuel FreemanAbstract:It has long been argued that the institution of Judicial Review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of Judicial Review as a legitimate democratic institution. The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose Judicial Review as one of the constitutional mechanisms for protecting their equal basic rights. As such, Judicial Review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which Judicial Review is appropriate in a constitutional democracy. This argument is contrasted with Hamilton's traditional argument for Judicial Review, based in separation of powers and the nature of Judicial authority. I conclude with some remarks on the consequences for constitutional interpretation.
Richard H Fallon - One of the best experts on this subject based on the ideXlab platform.
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the core of an uneasy case for Judicial Review
Harvard Law Review, 2008Co-Authors: Richard H FallonAbstract:TABLE OF CONTENTS I. WALDRON'S ARGUMENT THAT OUTCOME-RELATED REASONS ARE INADEQUATE TO SUPPORT Judicial Review 1701 A. Waldron's Assumptions 1701 B. Which Assumptions Do What Work? 1701 II. PREFERRED RIGHTS AND OUTCOME-RELATED REASONS TO SUPPORT Judicial Review 1704 A. Distinguishing Errors of Underenforcement and Overenforcement of Individual Rights 1704 B. The Limits of the Outcome-Based Case for Judicial Review: Contestable Premises and the Burdens of Judgment 1709 III. PROCESS-BASED REASONS AND POLITICAL LEGITIMACY 1715 A. Waldron's Process-Based Argument--And Its Limits 1716 B. Political Legitimacy and Its Sources 1716 C. Comparative Democratic and Political Legitimacy 1717 1. Anchoring Assumptions 1717 2. Transitional Questions 1719 3. Judicial Review Without Entrenchment 1719 4. Entrenched Rights and Judicial Review 1722 (a) Entrenched Rights Without Judicial Review 1722 (b) Entrenched Rights Coupled with Entrenched Judicial Review 1724 IV. NOTES ON THE DESIGN OF A SYSTEM OF Judicial Review 1726 A. Judicially Reviewable Issues 1727 B. Scope of Review 1730 C. Choosing Strong or Weak Judicial Review 1731 D. Judicial Review in Societies that Are Not Well Ordered 1732 V. CONCLUSION 1733 Richard H. Fallon, Jr. * For a long season, the desirability of Judicial Review of legislation was a complacent assumption of American constitutional, political, and moral thought. A vigorous debate percolated about how courts should interpret the Constitution, but not much serious discussion addressed whether Judicial Review should exist at all. Now matters have changed. Although debate continues concerning how courts should make constitutional decisions, distinguished critics have begun to argue for a fundamental rethinking of the role of courts in a democratic culture such as ours. (1) Some advocate the total abolition of Judicial Review. (2) Having heard the critics, I now believe that the affirmative case for Judicial Review needs to be partially revised if Judicial Review is to be defended successfully on the moral high ground of liberal political theory. In a nutshell, the best case for Judicial Review in politically and morally healthy societies does not rest (as has often been asserted) on the idea that courts are more likely than legislatures to make correct decisions about how to define vague rights of the kind commonly included in bills of rights--on notions, for example, that courts are peculiarly well designed to function as "forum[s] of principle." (3) The best case, as Frank Cross also has argued, (4) rests instead on the subtly different ground that legislatures and courts should both be enlisted in protecting fundamental rights, and that both should have veto powers over legislation that might reasonably be thought to violate such rights. A suggestive, albeit not perfect, analogy comes from the federal jury system in criminal cases, under which a defendant cannot be convicted without the unanimous agreement of the jury, (5) and each of the twelve jurors must vote to acquit unless persuaded that the defendant has been proven guilty "beyond a reasonable doubt." (6) If the concern were simply to get correct judgments about whether the accused had committed a crime, decisions by majority vote, pursuant to a preponderance of the evidence standard, would produce more accurate outcomes. (7) Instead, we skew the system in a pro-defendant direction based on the premise that errors resulting in mistaken convictions of the innocent are morally worse, and thus more important to avoid, than erroneous acquittals of the guilty. (8) In other words, we care less about minimizing the overall number of errors than about minimizing the errors in a particular direction--a situation that might also obtain with respect to judgments involving individual rights. …
Mark Tushnet - One of the best experts on this subject based on the ideXlab platform.
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against Judicial Review
2009Co-Authors: Mark TushnetAbstract:This essay, prepared for a conference, "Is the Constitution Obsolete?," to be held at Baruch College, City University of New York, and to be paired with an essay favoring Judicial Review, outlines the case against Judicial Review, which, it argues, contains a positive and a negative component.The positive component is this: As a general matter democracy requires almost definitionally that a polity's citizens be allowed to select their polity's policies (including policies respecting rights) either directly, as in referenda, or through mechanisms of representation that give them indirect but relatively proximate control over policy choice and that allow the people to substitute one policy for another without extraordinary political effort. Embedded in that sentence are a number of important qualifications, but one that is missing is something that reconciles democracy with constitutionalism understood as a set of political arrangements that ensures political stability by limiting the people's ability to alter some policy choices - those understood within the polity as basic - too easily.The negative component is simultaneously simpler to state and more difficult to establish. Proponents of Judicial Review agree that it should not be justified on the basis of arguments that would authorize courts to displace policy choice across the entire range of policy, and yet they have been unable to devise justifications that satisfy that criterion. The difficulty with the negative component is that the opponent of Judicial Review can work through existing justifications to show that they do not satisfy the "no universal scope" criterion but cannot eliminate the possibility that some new theory - with Ptolemaic epicycles added to existing theories, for example - might do so.The essay concludes with some observations on the implication of the fact that citizens in democracies around the world appear to accept Judicial Review, which raises questions for the democrat skeptic about Judicial Review.
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alternative forms of Judicial Review
Michigan Law Review, 2003Co-Authors: Mark TushnetAbstract:The invention in the late twentieth century of what I call weak-form systems of Judicial Review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form Judicial Review.1 Strongand weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strongand weak-form systems, I turn to design features that operate at the next lower level. Here legislatures or courts specify whether their enactments or decisions will receive strongor weak-form treatment. I examine examples of legislative allocations of issues to strongand weak-form Review and identify some practical and conceptual problems with such allocations. Then I examine Judicial allocations of the courts' own decisions to strongor weak-form categories. Here I consider Thayerian Judicial Review and what Professor Dan Coenen has called semisubstantive doctrines as exam-
Tsvi Kahana - One of the best experts on this subject based on the ideXlab platform.
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the easy core case for Judicial Review
Journal of Legal Analysis, 2010Co-Authors: Alon Harel, Tsvi KahanaAbstract:This paper defends Judicial Review on the grounds that Judicial Review is necessary for protecting “a right to a hearing.” Judicial Review is praised by its advocates on the basis of instrumentalist reasons, i.e., because of its desirable contingent consequences such as protecting rights, romoting democracy, maintaining stability, etc. We argue that instrumentalist easons for Judicial Review are bound to fail and that an adequate defense of udicial Review requires justifying Judicial Review on non-instrumentalist grounds. A non-instrumentalist justification grounds Judicial Review in essential attributes of he Judicial process. In searching for a non-instrumental justification we establish that Judicial Review is designed to protect the right to a hearing. The right to a hearing consists of hree components: the opportunity to voice a grievance, the opportunity to be rovided with a justification for a decision that impinges (or may have impinged) on one’s rights and, last, the duty to reconsider the initial decision giving rise to the grievance. The right to a hearing is valued independently of the merit of the decisions generated by the Judicial process. We also argue that the recent proposals to reinforce popular or democratic participation in shaping the Constitution are wrong because they are detrimental to the right to a hearing.
Matthew C Stephenson - One of the best experts on this subject based on the ideXlab platform.
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the welfare effects of minority protective Judicial Review
Journal of Theoretical Politics, 2015Co-Authors: Matthew C StephensonAbstract:Constitutional theorists usually assume that minority-protective Judicial Review leads to outcomes more favorable to the protected minority and less favorable to the majority. Our analysis highlights an indirect effect of Judicial Review that complicates this conventional wisdom. Without Judicial Review, pro-majority and pro-minority leaders adopt different policies. Because Judicial Review limits the degree to which pro-majority leaders can adopt anti-minority policies, it becomes easier for pro-minority leaders to ‘mimic’ pro-majority leaders by adopting the most anti-minority policy that the judiciary would uphold. Furthermore, if Judicial invalidation of anti-minority policies is probabilistic rather than certain, pro-majority leaders may propose even more extreme anti-minority policies in order to deter pro-minority leaders from mimicking. These effects can sometimes nullify, or even reverse, the assumed relationship between minority-protective Judicial Review and pro-minority outcomes. When such reversal occurs, majoritarian democrats should favor minority-protective Judicial Review, while those concerned with protecting unpopular minorities should oppose it.
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Judicial Review as a response to political posturing
American Political Science Review, 2011Co-Authors: Matthew C StephensonAbstract:also discourage posturing by alerting voters to unjustified government action. We further find that judges will defer to the decision of elected leaders unless posturing is sufficiently likely. We then show how Judicial Review affects voter welfare, both through its effect on policy choice and through its effect on the efficacy of the electoral process in selecting leaders. We also analyze how the desirability of Judicial Review is affected by characteristics of the leaders and the judges. What central in a is democracy? the preoccupation appropriate This role of question American for Judicial has constitu- been Review a in a democracy? This question has been a central preoccupation of American constitutional theory (Friedman 2002), and has assumed increasing salience internationally as the power and influence of courts around the world has grown (Hirschl 2004). Many have defended Judicial Review as a way to reduce or correct systematic failures in legislative and executive decision making - thereby reducing the divergence between actual policy choices and those that would prevail in an ideally functioning representative democracy. Appropriately designed Judicial Review, on
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the distributional effects of minority protective Judicial Review
2011Co-Authors: Matthew C StephensonAbstract:Constitutional theorists usually assume that minority-protective Judicial Review leads to outcomes more favorable to the protected minority and less favorable to the majority. Our analysis highlights three e ects of Judicial Review that complicate, and sometimes undermine, this conventional wisdom. First, Judicial Review can induce a shift from a separating equilibrium|in which pro-majority leaders and pro-minority leaders pursue di erent policies|to a semiseparating or pooling equilibrium in which pro-minority leaders sometimes mimic pro-majority leaders by adopting the most antiminority policy that the judiciary would uphold. Second, if Judicial validation of anti-minority policies is probabilistic rather than certain, pro-majority leaders may propose even more extreme anti-minority policies in order to deter pro-minority leaders from mimicking. Third, if voters cannot directly observe policy outcomes, then minority-protective Judicial Review may create incentives for a leader to signal (or conceal) her type by provoking Judicial reversal. These e ects can sometimes nullify, or even reverse, the assumed relationship between minority-protective Judicial Review and pro-minority outcomes. When such reversal occurs, majoritarian democrats should favor minority-protective Judicial Review, while those concerned with protecting unpopular minorities should oppose it.
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Judicial Review and democratic failure
2009Co-Authors: Matthew C StephensonAbstract:We use an agency model to analyze the impact of Judicial Review on democratic performance. We find that Judicial Review may increase democratic failure by rescuing elected officials from the consequences of ill-advised policies, but may also decrease democratic failure by alerting voters to unjustified government action. We further find that judges will defer to the decision of elected leaders unless the level of democratic failure is sufficiently high. We then show how Judicial Review affects voter welfare both through its effect on policy choice and through its effect on the efficacy of the electoral process in selecting leaders. We also analyze how the desirability of Judicial Review is affected by characteristics of the leaders and the judges. Our welfare analysis establishes general conditions under which Judicial Review serves majoritarian interests - and thereby arguably increases the “democratic” character of political outcomes, despite the non-democratic nature of Judicial Review itself.
