Constitutional democracy and the legitimacy of judicial review

Law and Philosophy 9 (4):327 - 370 (1990)
  Copy   BIBTEX


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.



    Upload a copy of this work     Papers currently archived: 74,213

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library


Added to PP

259 (#45,150)

6 months
3 (#208,938)

Historical graph of downloads
How can I increase my downloads?

Author's Profile

Samuel Freeman
University of Pennsylvania

References found in this work

No references found.

Add more references