AGAINST THE CORE OF THE CASE

Abstract

The debate over judicial review of legislation is profuse. But differences are often due to the lack of a common methodology. This article discusses the proper way to evaluate judicial review and confronts central challenges raised against it. It develops the two main models that can be used for analyzing the intersection between democracy and constitutional decision-making and shows that judicial oversight may not be rejected, regardless of how we interpret that connection. The article discusses in detail the model developed by Jeremy Waldron. A nice attempt to answer methodological questions, Waldron's model wrongly tips the balance against judicial review. Its excessive level of abstraction and idealization renders it inoperable. Few systems meet its standards, and those that do pay a high price: they contradict the concept of democratic legitimacy that underlies the model. Paradoxically, a system with judicial review may end up being more legitimate than one without it.