How Different are the Core Cases for and Against Judicial Review?

26 Pages Posted: 26 Dec 2008 Last revised: 18 Jan 2009

Date Written: December 25, 2008

Abstract

Recently Jeremy Waldron offered the "core of the case against judicial review." Richard Fallon responded with the "core of an uneasy case for judicial review." The core case for judicial review rested on a number of important conditions, and the core case against it incorporated a number of important qualifications. The two cases are quite similar once we take the conditions and qualifications into account. Imagine the conditions lying at the periphery of the core case against judicial review, and the qualifications lying at the periphery of the core case for it, and then convert the peripheries into the core. We will then see that the conditioned core case against judicial review is nearly identical to the qualified core case for it.

This Essay focuses on Professor Fallon's case. At its heart that case rests on the proposition that "[l]egislative action is more likely to violate fundamental rights than legislative inaction."Put another way: Fewer statutes are better than more statutes. I call this the libertarian presupposition in Professor Fallon's case. As a presupposition it can be overcome, and the qualifications Professor Fallon places on his argument describe the circumstances under which it is. Yet, taking those qualifications into account reduces the scope of judicial review to one largely compatible with Professor Waldron's conditioned case against judicial review. Differences between the cases are reduced even further by Professor Fallon's tentative conclusion that weak-form judicial review is probably preferable to the strong form characteristic of U.S. judicial review.

Part II of this Essay outlines the two core cases. Part III examines the libertarian presupposition, raising questions about its implication that private violations of fundamental rights are less serious or pervasive than violations of fundamental rights pursuant to legislation. Part IV discusses an issue that Professor Fallon generally sets to one side: Professor Waldron's argument that an important part of the core case against judicial review is the existence of reasonable disagreement about the proper specification of fundamental rights. I argue that, while Professor Fallon provides a plausible psychological account of why the existence of such disagreement is unlikely to do much work in persuading people to accept the core case against judicial review, that psychological account offers a path toward understanding the different dispositions that lead Professors Waldron and Fallon to characterize their quite similar positions in the more dramatic "against-for" manner. Part V summarizes the similarities in the two core cases.

Keywords: Judicial review, constitutional law, Jeremy Waldron, Richard Fallon

Suggested Citation

Tushnet, Mark V., How Different are the Core Cases for and Against Judicial Review? (December 25, 2008). Harvard Public Law Working Paper No. 09-04, Available at SSRN: https://ssrn.com/abstract=1320502 or http://dx.doi.org/10.2139/ssrn.1320502

Mark V. Tushnet (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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