Democracy, Mixed Government and Judicial Review

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This is a pre-publication draft of my contribution to a forthcoming collection, Law under a Democratic Constitution:Essays in Honour of Jeffrey Goldsworthy (forthcoming, eds. L.Crawford, P.Emerton, & D.Smith, Hart Publishing, 2019). A persistent concern with constitutional judicial review of legislation is based on its necessary interference with democratic government.Various responses have been made but almost all take for granted the presumption that the decisions of elected legislatures ought to be respected and that any deviation from such decisions requires special justification. I raise some questions about the assumed desirability of democratic decision-making.These questions arise from evidence casting doubt on the competence of average voters, a problem which may have been exacerbated by changes in the way information is transmitted and received. At the same time, constitutional rules and institutions that prevented popular preferences from being translated into public choices have been progressively abandoned. Numerous academic commentators have plausibly challenged the conventional understanding of the function of constitutional judicial review -- i.e. the enforcement of rules entrenched in a governing constitution. They argue that, either intrinsically or as a matter of experience, constitutional judges review state action according to their personal views of the public good. If that characterization is accepted, it is easy to see judicial review as a version of the ancient concept of government. While, historically, that idea was seen as a way to check the power of monarchs, in its modern iteration, judges supply the aristocratic element that guards against dangers inherent in democracy. In the American constitutional system, this means that the judiciary would take over the role that the Senate was expected to take in the designed by the founders. Endorsement of the mixed government picture of constitutional judicial review necessarily involves giving up as impractical the rule of law values of the conventional view. In this respect, it may have more in common with European type judicial review -- in which constitutional tribunals have a deliberately political role in public decision-making -- than with the American model in which such review is just a by-product of the judicial duty to apply governing law. While the view interferes with the directly influence of popular preferences on public policy-making, it maintains a situation whereby persistent and deeply held public opinion is likely to prevail. In that sense, it is consistent with democratic broadly conceived.