Judicial Review in Context: A Response to Counter-majoritarian and Epistemic Critiques

Theoria: A Journal of Social and Political Theory 58 (127):1-23 (2011)
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Abstract

This essay defends judicial review on procedural grounds by showing that it is an integral part of American democracy. Critics who object to judicial review using counter-majoritarian and epistemic arguments raise important concerns that should shape our understanding of the Supreme Court. Nevertheless, critics often fail to account for the formal and informal mechanisms that overcome these difficulties. Critics also fail to show that other branches of government could use the power of Constitutional interpretation more responsibly. By defending judicial review in the American context, this essay demonstrates that judicial review is not inherently undemocratic

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