The republican core of the case for judicial review: A reply to Tom Hickey. Why political constitutionalism requires equality of power and weak review

Abstract

Political Constitutionalism (hereinafter PC)1 deployed the version of republican theory developed by Philip Pettit to argue against not only the liberal democratic case for legal constitutionalism and judicial review put forward by John Rawls and Ronald Dworkin but also Pettit’s own purportedly neo-republican version of a similar argument,2 along with those of other writers who adopted neo-republican arguments of a slightly different kind, such as Jurgen Habermas, Cass Sunstein, and Frank Michelman. PC contended that for all citizens to be equal under the law in a manner consistent with freedom as non-domination, the law and legal system had to be under their equal influence and control in ways that could only be achieved through an appropriate form of democracy. This form of democracy would need to possess certain constitutional qualities, such as the impartial and equitable treatment of all interested parties. In particular, it required the institutionalization of a balance of power of a kind that encouraged both citizens and their representatives to “hear the other side,” and so be moved to decide collective policies in ways that addressed their “commonly avowable interests” and thereby treated all citizens with equal concern and respect. I suggested that parliamentary representative democracies, involving free and fair elections between competing parties and employing a system of majoritarian voting, had many of the requisite features.