Between Judicial and Legislative Supremacy: A Cautious Defense of Constrained Judicial Review
Hebrew University of Jerusalem - Faculty of Law
Harvard Law School
February 13, 2011
This Article explores and evaluates theories that we label "theories of constrained judicial review." These theories, which include popular constitutionalism, departmentalism, and weak judicial review, challenge both the constitutional supremacy of courts and adopt an intermediate position that grants courts a privileged but not supreme role in interpreting the Constitution. To evaluate such theories, this Article develops both a negative and a positive argument. It criticizes the existing justifications of constrained judicial review and provides a new justification for such theories. More specifically, we argue that the ultimate justification for constrained judicial review cannot be grounded in instrumentalist or consequentialist concerns, namely in the allegedly superior decisions rendered by courts within systems of constrained judicial review. Moreover, these theories cannot be defended by appealing to extant non-instrumental legitimacy-based justifications. Instead, the justification for constrained judicial review must be grounded in what we call a "the right to a hearing." We distinguish between a strong (or robust) right to hearing (which requires judicial supremacy) and a weak right to a hearing (which requires constrained judicial review). Thus, the debate between advocates of judicial supremacy and advocates of constrained theories of judicial review should be construed as a debate concerning the nature and scope of the right to a hearing. Furthermore, systems of constrained judicial review, if they are to guarantee the right to a hearing, must be designed such that non-adjudicative bodies reconsider individual grievances. By doing so in a way that is sensitive to the individual grievance and its particularities, these bodies undertake adjudicative functions.
Number of Pages in PDF File: 35
Keywords: judicial review, constitutional theory, judicial supermacy, weak judicial reviewworking papers series
Date posted: February 14, 2011
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