Abstract
Constitutional theory has been obsessed with an attempt to provide an adequate justification for judicial review. This chapter defends judicial review. Its main task is to expose a critical flaw shared by both advocates and opponents of judicial review and to propose a framework for addressing this difficulty. The critical flaw of the debate is the conviction that judicial review must be instrumentally justified, i.e., that it be grounded in contingent desirable features of the judicial process (for example, the superior quality of decisions rendered by judges). Then the chapter develops a new proposal to defend judicial review. Under this proposal, judicial review is designed to provide individuals with a right to a hearing or a right to raise a grievance. Judicial review is essential not because it improves the quality of decision-making, but because it compels government to be attentive to the grievances of its citizens.
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