Inferiorizing Judicial Review: Popular Constitutionalism in Trial Courts

73 Pages Posted: 30 Dec 2009 Last revised: 14 Apr 2011

See all articles by Ori Aronson

Ori Aronson

Bar-Ilan University - Faculty of Law

Date Written: December 30, 2009

Abstract

The ongoing debates over the legitimacy of judicial review as well as the evolving school of thought called ‘popular constitutionalism,’ are characterized by a preoccupation with the Supreme Court as the embodiment of judicial power. This is a striking shortcoming in prevailing constitutional theory, given the fact that in the U.S., inferior courts engage in constitutional adjudication and in acts of judicial review on a daily basis, in ways that are importantly different from the familiar practices of the Supreme Court. The article breaks down this monolithic concept of ‘the courts’ by shifting the focus to the lower levels of the judicial system. Trial court adjudication is revealed to hold a unique transformative potential for constitutionalism: the possible enhancement of civic participation, public deliberation, and value pluralism in the process of creating constitutional meanings.

The article presents an argument for ‘inferiorizing’ judicial review, i.e., relegating the power of judicial review to the federal district courts, and removing the Supreme Court from this practice. The ‘inferiorizing’ model – a procedurally simple, though conceptually radical, jurisdictional shift – is shown to have a redeeming potential for judicial review as a democratically legitimate means of enforcing constitutional rights; while at the same time providing a robust institutional setting for the exercise of popular constitutionalism. Although it would be very difficult to bring about a full inferiorizing shift in constitutional adjudication, the article exposes the possibilities for democracy-enhancing institutional innovation; these possibilities become available to constitutional actors once the institutional diversity of courts is recognized.

Suggested Citation

Aronson, Ori, Inferiorizing Judicial Review: Popular Constitutionalism in Trial Courts (December 30, 2009). University of Michigan Journal of Law Reform, Vol. 43, No.4, p.971, 2010. Available at SSRN: https://ssrn.com/abstract=1529809

Ori Aronson (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Faculty of Law
Ramat-Gan, 5290002
Israel

HOME PAGE: http://law.biu.ac.il/en/node/558

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