Reconsidering the Role of Democratic Legitimacy in the Debate over American Judicial Review

Abstract

The process of judicial review remains fundamental to the American political order, even as legal theorists continue to debate its legitimacy. Both sides of the argument make appeals to democracy in order to bolster their arguments: those who oppose judicial review claim that it is antithetical to democracy, while its supporters maintain that it enhances it. Yet this widespread commitment to democracy obscures conceptual inconsistencies within legal theorists’ work. If we are to use democratic legitimacy as the touchstone in debates about judicial review, then we must be precise in our understanding of how American democracy actually functions. This paper aims to address this deficit by adopting the perspective of Thomas Hobbes and Karl Marx to explore some fundamental aspects of American democracy that are missing from the judicial review debate. These twin analyses should inform the broader discussion by offering an external perspective not biased by prior commitments to democracy. My aim is not to advance a substantive argument for or against judicial review. Rather, I will show the importance of thinking deeply about the way our democracy actually functions before we can productively consider the merits of judicial review as a means of preserving it.