Freeman's defense of Judicial Review

Abstract

In a recent article entitled "Constitutional Democracy and the Legitimacy of Judicial Review," Samuel Freeman has offered a challenging critique of the claim still commonly heard in constitutional jurisprudence that the judicial review of legislation (on the basis of a Bill of Rights) is undemocratic.1 The claim, he concedes, is trivially true for anyone who stipulatively defines "democratic" in terms of majoritarian procedures. But it is not trivially true indeed he thinks it is not true at all if "democratic" is defined more generously to include the rule of law, civil liberties and equality of opportunity. "There is," says Professor Freeman in the conclusion of his article, "nothing undemocratic (and it is disingenuous to claim there is) about the judicial review of laws that infringe against the equality of such fundamental moral rights as liberty of conscience and freedom of thought, freedom of association, freedom of occupation and choice of careers, political participation, and, more generally, the freedom to pursue one's own plan of life."2 I am not sure anything is gained in this debate by one side calling the other "disingenuous". Judicial review of legislation is now such a familiar feature of American political culture that people here are inclined to accept its democratic credentials without question. But it is a live and open issue in other countries most notably in the Charter 88 campaign for constitutional reform in the U.K. Having studied (and