Law and Philosophy 9 (4):327 - 370 (1990)
|Abstract||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.|
|Keywords||No keywords specified (fix it)|
|Through your library||Configure|
Similar books and articles
Simon Butt, The Constitutional Court's Decision in the Dispute Between the Supreme Court and the Judicial Commission: Banishing Judicial Accountability?
Rex Martin & Stephen M. Griffin (1995). Constitutional Rights and Democracy in the U.S.A.: The Issue -of Judicial Review. Ratio Juris 8 (2):180-198.
Christopher Zurn, IX. The Institutions of Constitutional Review II: Horizontal Dispersal and Vertical Empowerment.
A. Kavanagh (2003). Participation and Judicial Review: A Reply to Jeremy Waldron. Law and Philosophy 22 (5):451-486.
Charles-Maxime Panaccio (2010). Professor Waldron Goes to Canada (One More Time): The Canadian Charter and the Counter-Majoritarian Difficulty. Common Law World Review 39:100.
Corey Brettschneider (2005). Balancing Procedures and Outcomes Within Democratic Theory: Corey Values and Judicial Review. Political Studies 53:423-451.
A. Harel (2003). Rights-Based Judicial Review: A Democratic Justification. Law and Philosophy 22 (s 3-4):247-276.
Added to index2009-01-28
Total downloads188 ( #1,509 of 549,011 )
Recent downloads (6 months)2 ( #37,272 of 549,011 )
How can I increase my downloads?