Structural Judicial Review and the Objection from Democracy

Abstract:     
Judicial review of legislation to ensure its compatibility with vague and abstract principles of political morality is often argued to be incompatible with the democratic right of ordinary citizens to participate on equal terms in public decision making. Adrienne Stone argues that 'structural' judicial review, aimed at protecting constitutional structures such as federalism and the separation of powers, is just as vulnerable to this objection as 'rights' review, aimed at protecting constitutionally entrenched rights. I argue that some kinds of structural review are distinguishable from rights review and not susceptible to the objection: it does not apply to (a) judicial enforcement of provisions dividing powers within a federation; (b) genuine 'manner and form' requirements governing the composition, powers, and procedures of the legislature and its houses, provided that they leave its substantive power to legislate unaffected; (c) a requirement that only independent courts may exercise the judicial power of determining the concrete legal rights and duties of litigants, based on the application of general laws that legislatures have made and remain free to change; or (d) provisions forbidding states or provinces within a federation from discriminating against the residents or commercial enterprises of other states or provinces.

Keywords: judicial review, democracy, federalism, judicial independence, manner, form

JEL Classification: K00, K10, K19, K20, K29, K30, K39, K40, K49

Accepted Paper Series