Review Essay: A Common Law Theory of Judicial Review by W.J. Waluchow

Abstract

The critic of judicial review has to acknowledge that the rejection of judicial review creates a risk that some injustices may go uncorrected. However, judicial review poses its own set of problems, which can also be described as forms of injustice. In A Common Law Theory of Judicial Review, W.J. Waluchow concedes much of the argument against judicial review (at least from the objection of democratic principle), and sets out to articulate and defend a common law conception of bills of rights and judicial review that will satisfy what he concedes to be the legitimate concerns of critics. In this review essay, I provide a brief overview of Waluchow's central argument that judicial review enhances democracy, before turning to three immediate challenges to Waluchow's common law theory: (1) whether Waluchow's conception of community constitutional morality can guide judicial deliberation to the degree required by the theory; (2) whether the theory provides any guidance in circumstances of radical disagreement; and (3) whether Waluchow's case for the necessity of judicial review from what he terms the circumstances of rule-making is sound.

Keywords: Waluchow, common law constitution, living tree, judicial review, constitutional theory

JEL Classification: K00, K10, K1