Legitimacy Of Judicial Review Research Articles

Between Diffuse and Concentrated Judicial Review: An Israeli Hybrid and its Alternatives

The paper surveys the hybrid jurisdictional layout of judicial review of legislation in Israel, which incorporates both diffuse and concentrated elements. While practically all normative assessments of the current state of affairs – by both critics and defenders of the legitimacy of judicial review – coalesce to support a concentrating reform, the paper argues that Israel’s constitutional condition might in fact gain from a transition toward a more robustly diffuse exercise of judicial review.

Neither Dialogue nor Last Word: Deliberative Separation of Powers III

AbstractThis article is the third and last of a series that tries to understand and reconcile ‘theories of last word’ and ‘theories of dialogue’ with respect to the proper place of constitutional courts within democratic regimes. It claims that there is a complementarity between both approaches: the design of the separation of powers needs to decide, contextually, whether elected parliaments or constitutional courts should bear the burden of the ‘provisional’ last word upon constitutional meaning; it should not neglect, however, the fact that institutions inevitably interact and can challenge each other's decisions over time, a datum that needs to be factored into the discussion about the legitimacy of judicial review. The article further claims that, if some sort of interaction between branches is inevitable over time, constitutional theory should elaborate on which sort is more desirable and legitimate than others. An interaction inspired by a normative ideal of dialogue and of deliberative performance,...

The Case for Judicial Review: Judges as Agents and Judges as Trustees

Lawyers, constitutional theorists and political philosophers continue to disagree over the merits and legitimacy of judicial review. Borrowing insights from delegation theory, industrial organization as well as empirical accounts of judicial behaviour, this paper assesses two approaches to the justification of judicial review: (1) Following the PrincipalAgent Model, judges are given the authority to review and invalidate legislation to enforce the choices of the constitutional framers over recalcitrant legislative majorities. (2) By contrast, under the Trustee Model, judges are given the power of judicial review to act as trustees of the political system: their task is to ensure that the legislative process produces the “best” outcomes or, at least, policies that are Pareto-optimal. While showing how the two models relate to traditional understandings of the role of judges, the paper assesses the extent to which the organizational setting of courts and the judges’ incentive structure ensure that judicial review works as each model prescribes. It is argued that, from an empirical standpoint, justifying judicial review is easier – albeit by no means unproblematic – under the Trustee than under the Principal-Agent Model.

The Supreme Court in a Common Law Tradition: The Democratic Legitimacy of Judicial Review in Light of American Legal Realism

The democratic legitimacy of judicial review, especially the proper role of the Supreme Court in a democratic system, is a constantly debated issue in American constitutional law. While many theories or arguments focus their attention on the so-called countermajoritarian difficulty of judicial review, the viewpoint of American Legal Realism deserves special attention, since it conceives of democracy not merely as majority rule, but rather as government based on what the people really want, which then must be investigated not only in legislation, but in judicial process. Therefore, it strongly argues for the connection between judicial decisions and concrete social experience and in consequence focuses its attention particularly on the Supreme Court's investigation of empirical social science, which it believes will improve that court's legal reasoning on democratic grounds and in this way reinforce the democratic legitimacy of the court's decision. Thus conceived, Legal Realism regards common law as a specific way to realize democracy, and accordingly provides a framework for the proper role of the Supreme Court. In this view, Legal Realism plays an important role in the American constitutional history not only because it methodologically stands against Formalism, but because it provides a different model for explaining and supporting the democratic legitimacy of judicial review of the US Supreme Court within its common law background.

Droit et justice constitutionnelle de Habermas à Luhmann

AbstractIn the debate over the legitimacy of judicial review, Jürgen Habermas put forward two justifications for the role of constitutional judges within deliberative democracy. Judicial review must examine the procedural conditions of the legislative process and participate within a learning process that would ensure the continuous redefinition of the Constitution. This procedural concept of constitutional justice remains subject to the scrutiny of the other procedural theories. Whereas the theory of contextual proceduralization questions the concept of the legal judgment and more specifically the habermassian conception of the application of a legal norm, the systemic theory offers the conceptual framework required to explain this learning process and the function of judicial review in the legal system. Therefore, Habermas' procedural theory is extended in line with alternative theories of the proceduralization of law.

The legitimacy of judicial review: The limits of dialogue between courts and legislatures

According to the theory of ‘‘institutional dialogue,’’ courts and legislatures participate in a dialogue aimed at achieving the proper balance between constitutional principles and public policies and the existence of this dialogue constitutes a good reason for not conceiving of judicial review as democratically illegitimate. This essay sets out to demonstrate that there are important limits to the capacity of insitutional dialogue to legitimize the institution of judicial review. To that end, it situates the theory of institutional dialogue within the debate over the legitimacy of judicial review of legislation within democracy and introduces a distinction between two conceptions of dialogue—dialogue as deliberation and dialogue as conversation—and examines the limits of each theory. The author does not contend that there can be no dialogue between courts and legislatures but, rather, that the kind of dialogue that would be needed to confer legitimacy on the institution and practice of judicial review does not—and cannot—exist. Consequently, the normative character of institutional dialogue theory, as conceived thus far, is ultimately rhetorical. The theory of ‘‘institutional dialogue,’’ as I shall call it, may be seen as a Canadian contribution to the debate over the democratic legitimacy of judicial review. 1 According to this theory, the courts and the legislatures participate in a dialogue regarding the determination of the proper balance between constitutional principles and public policies, and, this being the case, there is good reason to think of judicial review as democratically legitimate. It is an ongoing dialogue because the judiciary does not necessarily have the last word with respect to constitutional matters and policies; the legislatures would almost always have the power to reverse, modify, or void a judicial decision nullifying legislation and, therefore, to achieve their social or economic policy ends. Consequently the countermajoritarian objection to

Democracy, Rights Disagreements And Judicial Review

Is judicial review of legislative enactments democratically legitimate? Does it matter? This essay interrogates the usually poorly understood relation between judicial review and democracy, focussing on the fact of reasonable disagreements about the way in which the judiciary should interpret rights. A number of views about the democratic legitimacy of judicial review, including those of Dworkin, Waldron and Michelman, are examined. I argue not only that judicial review suffers from a deficit of democratic legitimacy, but also that this shortfall has important practical consequences for politics and judicial practice. Although this essay is primarily theoretical, it draws attention to the implications of the arguments it considers and advances for South African constitutionalism.

General Legitimacy of Judicial Review and the Fundamental Basis of Constitutional Law

Four questions dominate normative contemporary constitutional theroy: What is the purpose of a constitution? What makes a constitution legitimate? What kinds of arguments are legitimate within the process of constitutional interpretation? What can make judicial review of legislation legitimate in principle? The main purpose of this text is to provide one general answer to the last question. The secondary purpose is to show how this answer may bear upon our understanding of the fundamental basis of constitutional law. These two purposes should suggest particular answers to the first three questions.

The Origins of Judicial Review

This year marks the 200th anniversary of Marbury v. Madison, the case which is often taught in law schools as establishing judicial review. Despite the absence of any broader political controversy over the role of the Supreme Court, akin to that which existed during the Civil War or the New Deal periods, academics from both ends of the political spectrum have attacked the legitimacy of judicial review. Recent critics have even argued that the Constitution, as originally understood, did not authorize courts to refuse to enforce unconstitutional legislation. In this paper, we discuss the textual, structural, and historical roots of judicial review. First, we show that the constitutional text permits judicial review and we describe the severe difficulties associated with the claim that the Constitution is not law to be applied in the courts. Second, we explain that the constitutional structure requires the judiciary refuse to enforce laws that violate the Constitution due to its status as a coordinate branch of government. Simply put, the text and structure demand that the judiciary interpret and give effect to the Constitution in the course of performing its function of deciding Article III cases or controversies. Third, we refute the notion that the Founders did not understand the Constitution to establish judicial review. We trace how historical developments leading up to the ratification had made judicial review a familiar institution to the Founders, and we demonstrate that all those who discussed judicial review during ratification (there were dozens) agreed that the Constitution authorized judicial review. We conclude that those who argue that the Founders originally understood the Constitution to preclude judicial review have misread the historical record.

THE CONSTITUTIONAL FOUNDATIONS OF JUDICIAL REVIEW: CONCEPTUAL CONUNDRUM OR INTERPRETATIVE INQUIRY?

THE essay questions the sense and purpose of current debate over the coherence of the ultra vires doctrine. It argues that the dispute is mainly semantic, serving to conceal rather than illuminate genuine questions about the nature and legitimacy of judicial review. If the doctrine’s opponents are right to emphasise the common law basis of the relevant standards of legality, abstractly conceived, the ultra vires school is equally right to insist that, in a statutory context, legislative intention is critical to the application of such standards. To connect the present debate with significant issues of substance, it would have to be recast as one between those favouring a “normativist” grounding of judicial review in the rule of law, on the one hand, and their “functionalist” or “pluralist” opponents, generally hostile to judicial review, on the other. The futility of the present debate is revealed by the simultaneous adherence of both sides to an integrated “rule of law” perspective. A useful analysis of the foundations of judicial review, capable of illuminating issues of substance, must explore the true meaning of the interrelated concepts of parliamentary sovereignty and the rule of law. No attack on the “empty formalism” of the ultra vires doctrine can carry conviction while at the same time affirming the doctrine of absolute parliamentary sovereignty, a doctrine equally malleable in the hands of judicial interpreters of statute, guided by common law precepts.

Partisanship as Political Science: A Reply to Rainer Knopff and F. L. Morton

One of the main points of “Ghosts of the JCPC” is that the study of Charter politics is currently dominated by a sterile and well-worn debate over the legitimacy of judicial review. Rainer Knopff and F. L. Morton return to these issues in their reply. They frequently refer to their own position or to my putative positions in their reply to my work. But, they do not engage in a discussion of what is, or in making arguments about how we might understand or explain what is, rather than on constantly judging what is according to our own personal and partisan political prejudices.

Ghosts of the Judicial Committee of the Privy Council: Group Politics and Charter Litigation in Canadian Political Science

This article examines the criticism of the activist Supreme Court of Canada in Canadian political science, as exemplified by the work of F. L. Morton and Rainer Knopff. It compares the debate over the legitimacy of judicial review with a previous generation's debates over the same question with reference to the role and impact of the Judicial Committee of the Privy Council on the development of Canadian federalism. The article argues that, particularly in examining the role of groups in the litigation process, we need to return to the lessons of the previous debate on the JCPC by emphasizing the ways in which group politics and litigation are connected to power relations in Canadian society. In the conclusion, the article offers an alternative approach to exploring the theoretical and empirical relationships between collective actors and litigation based on the Canadian Charter of Rights and Freedoms.

Rights Essentialism and Remedial Equilibration

There is no such thing as a constitutional right, at least not in the sense that courts and constitutional theorists routinely assume. A leading strategy employed by constitutional discourse to legitimate and protect the privileged status of constitutional rights is to segregate sharply the superior realm of rights from the inferior realm of remedies. The right/remedy distinction in constitutional law serves to maintain the illusion that rights are defined by courts through a mystical process of identifying pure constitutional values without regard to the sorts of functional, fact-specific policy concerns that are relegated to the remedial sphere. This illusion is fundamental to the self-image and perceived legitimacy of constitutionalism and judicial review. In the actual practice of constitutional adjudication, however, the qualitative distinction between rights and remedies blurs, or even dissolves. No less than in contract and property law--where from Holmes to Calabresi & Melamed we have recognized that rights and remedies are functionally interrelated--rights and remedies in constitutional law are interdependent and inextricably intertwined. Drawing on illustrations from disparate areas of constitutional law, this Article develops a conceptual taxonomy of right-remedy relationships. The richer understanding of the types and typicality of right-remedy interactions that emerges potentially has sweeping practical and theoretical implications. In light of this understanding, the Article reconsiders the appropriate division of constitutional authority between courts and the political branches; the notions that constitutional rights can be over- and under-enforced; the debate between top-down constitutional theorists like Ronald Dworkin and pragmatist, bottom-up critics like Richard Posner and Cass Sunstein; and, most fundamentally, the purposes and legitimacy of judicial review.

Rights Essentialism and Remedial Equilibration

There is no such thing as a constitutional right, at least not in the sense that courts and constitutional theorists routinely assume. A leading strategy employed by constitutional discourse to legitimate and protect the privileged status of constitutional rights is to segregate sharply the superior realm of rights from the inferior realm of remedies. The right/remedy distinction in constitutional law serves to maintain the illusion that rights are defined by courts through a mystical process of identifying pure constitutional values without regard to the sorts of functional, fact-specific policy concerns that are relegated to the remedial sphere. This illusion is fundamental to the self-image and perceived legitimacy of constitutionalism and judicial review. In the actual practice of constitutional adjudication, however, the qualitative distinction between rights and remedies blurs, or even dissolves. No less than in contract and property law--where from Holmes to Calabresi & Melamed we have recognized that rights and remedies are functionally interrelated--rights and remedies in constitutional law are interdependent and inextricably intertwined. Drawing on illustrations from disparate areas of constitutional law, this Article develops a conceptual taxonomy of right-remedy relationships. The richer understanding of the types and typicality of right-remedy interactions that emerges potentially has sweeping practical and theoretical implications. In light of this understanding, the Article reconsiders the appropriate division of constitutional authority between courts and the political branches; the notions that constitutional rights can be over- and under-enforced; the debate between top-down constitutional theorists like Ronald Dworkin and pragmatist, bottom-up critics like Richard Posner and Cass Sunstein; and, most fundamentally, the purposes and legitimacy of judicial review.

Freeman's defense of Judicial Review

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

Constitutional democracy and the legitimacy of judicial review

It has long been argued that the institution of judicial review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of judicial review as a legitimate democratic institution. The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which judicial review is appropriate in a constitutional democracy. This argument is contrasted with Hamilton's traditional argument for judicial review, based in separation of powers and the nature of judicial authority. I conclude with some remarks on the consequences for constitutional interpretation.

Constitutional Democracy and the Legitimacy of Judicial Review

Constitutional Democracy and the Legitimacy of Judicial Review

Liberty under law: the Supreme Court in American life

The two-hundredth anniversary of the U.S. Constitution and the intense debates surrounding the recent nominees to the Supreme Court have refocused attention on one of the most fundamental documents in U.S. history -- and on the judges who settle disputes over its interpretation. Liberty under Law is a concise and readable history of the U.S. Supreme Court, from its antecedents in colonial and British legal tradition to the present. William M. Wiecek surveys the impact of the Court's power of judicial review on important aspects of the nation's political, economic, and social life. The author highlights important decisions on issues that range from the scope and legitimacy of judicial review itself to civil rights, censorship, the rights of privacy, separation of church and state, and the powers of the President and Congress to conduct foreign affairs. Wiecek's own beliefs about the Court and the Constitution are unabashed and clearly stated. He expresses admiration for John Marshall while critically reviewing the mixed achievements of Marshall's successor, Roger Taney, author of the infamous Dred Scott opinion, which upheld the legitimacy of slavery. And he offers sharp criticism of the Court's formalist era in the early twentieth century, when judicial obstructionists sought to shield a minority of wealth from the effects of democratic politics. Throughout, Wiecek underscores the importance of disagreements over just what law is, and over the Court's role in interpreting that law. In so doing, he broadens the context for current debates about the Constitution and efforts to establish what some have called a jurisprudence of original intention. The mirror of history, heshows, reveals the limitations of such a narrow scope of interpretation.

Interpretive and Noninterpretive Constitutional TheoryThe Constitution, the Courts, and Human Rights. Michael J. PerryConstitutional Fate: Theory of the Constitution. Philip Bobbitt

The constitution declares itself to be Law of Land, and judges must enforce law. emphatically province and duty of judicial department to say what law is, declared Chief Justice Marshall for a unanimous Supreme Court in 1803.1 If two laws conflict, he continued, the courts must decide on operation of each. And, if a law be in opposition to constitution, then the constitution and not such ordinary act, must govern case to which they both apply. Thus was born American doctrine of judicial of constitutionality of legislative and executive actions. It countermajoritarian, and its acceptability in a democracy depends heavily on what Supreme Court judges declare meaning of constitution to be, especially its broad and somewhat vague phrases. Michael Perry and Philip Bobbitt agree that Supreme Court's constitutional interpretation can affect legitimacy of institution of judicial review. Indeed, after distinguishing judicial from (a distinction to be considered later), Perry boldly asserts that legitimacy of judical is problem of contemporary constitutional theory.2 His dedicated to an attempt to articulate a functional justification for noninterpretive with respect to human rights issues.3 Equally convinced, Bobbitt opens his asserting that central issue in constitutional debate of past twenty-five years has been legitimacy of judicial review and that his book an examination of question of such legitimacy.4 The distinction between and crucial to Perry's arguments in his widely acclaimed because, for him, legitimacy of interpretive is not a particularly difficult