Judicial Review and Populism

Abstract

Some critics of judicial review are calling for a populist or constitution. They advocate abolition of judicial review in name of greater democracy. This paper explores reasons to be skeptical of call to eliminate judicial review. First, some critiques too quickly identify the people with elected officials. As a result, they underestimate contribution judicial review can make to democracy. Second, focus on eliminating judicial review as a means of achieving democratic politics is not accompanied by a searching examination of what would be required for a strong democracy. Instead of an obsessive focus on counter-majoritarian difficulty caused by judicial review, we need to give attention to majoritarian difficulty - obstructions we face to a meaningful democratic process. Rather than abolish judicial review, this paper calls for us to broaden conception of what we see as a question and to consider what reforms (using word constitutional in its broad sense) would be required for greater democracy. That would require a shift from obsessive focus on Court and document to a wider focus on basic factors that influence what sort of a constitution - in larger sense - we have. Popular argument has at times served some of functions we expect from judicial review. Greater acceptance and appreciation of role of popular argument might also contribute to a more democratic constitutionalism.