Over the past several decades, there has been a vigorous debate amongst legal and political theorists regarding the apparent tension between democracy and American-model judicial review. Several theorists have argued that allowing an unelected judiciary to reshape constitutional norms, thereby limiting the measures which can be taken by majoritarian processes, is democratically problematic. Other theorists have attempted to define democracy in ways which render judicial review less morally troublesome. Common to both sides seems to be the assumption that the correct position depends primarily on what we mean by ‘democracy’ or ‘majority rule.’ This represents a considerable obstacle to debate given the intense contestation of those concepts in both academic and lay discourse. This paper will attempt to address the relationship between democracy and judicial review along a different path. I here begin with what I believe to be a relatively noncontroversial premise: that judicial review of constitutional law can be understood as a particularly important special case of the more common process of adjudication. I thus hope to explore the topic of judicial review with a focus on the implications our chosen theory of adjudication has on our understanding of both constitutional norms and democracy. Particularly, I hope to contrast the moral and practical difficulties that judicial review poses for the perspectives of both legal positivism as exemplified by the work of H.L.A. Hart and the interpretive theory of law espoused by Ronald Dworkin. As I understand the difference between the two theories, they conceptualize the process of adjudication (and thus judicial review) entirely differently. For the Hartian, adjudication of novel cases involves the ex post construction of legal norms to fit new situations as they arise. For the Dworkinian, adjudication is ideally an attempt to discover the principles of political morality already internal to the legal order from which the case arises. I will here argue that this conceptual disagreement leads to profound differences in how we should understand the moral complexities raised by the issue of judicial review. Finally, I will argue that Dworkin’s theory of adjudication provides a much better framework for understanding the moral importance of the debate over judicial review and its relation to our understanding of democracy. To better ground this discussion, I will frequently illustrate the differences between the two theories with a fairly recent decision of the United States Supreme Court, United States v. Jones. In Jones, the Supreme Court had to decide how the Fourth Amendment to the United States Constitution applies to the warrantless installation and use of a GPS-tracking device to gather information about a criminal suspect’s movements. Because the issue in the case concerns the constitutionality of the government’s use of technology invented over two hundred years after the enactment of the relevant constitutional provision, I believe it represents an ideal example to ground our discussion of whether and how courts craft new constitutional norms through the process of judicial review. This paper has three parts. In Part One, I will briefly summarize the relevant features of these two theories of adjudication as they relate to judicial review. In Part Two, I will summarize the facts of Jones and attempt to confront the case from each of these perspectives while occasionally contrasting both with the frameworks adopted by Justices Scalia and Alito. In Part Three, I will use the arguments presented in the Parts One and Two to contrast positivism and interpretivism as theories of judicial review. I will argue that, because of Dworkin’s acceptance of principles of political morality already inherent in the law, his theory does a better job of: (a) comporting with the actual behavior of judges engaged in judicial review, (b) explaining how judicial review presents a legitimate moral difficulty for democratic societies, and (c) providing a theoretical framework for how we should understand democratic or majoritarian control of the judiciary.
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Dec 13, 2019
Danguolė Šavareikienė 
Open Access
