Constitutionalism, Judicial Supremacy, and Judicial Review: Waluchow's Defense of Judicial Review against Waldron

Abstract

Jeremy Waldron is well known for his disdain of U.S. jurisprudential doctrine 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 issues is wide spread 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 en acted 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 out standing new book, A Common Law Theory of Judicial Review, 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.