The Puzzling Resistance to Judicial Review of the Legislative Process
Boston University Law Review, Vol. 91, 2011
60 Pages Posted: 18 May 2011 Last revised: 16 Jan 2012
Date Written: May 11, 2011
Should courts have the power to examine the legislature's enactment process and strike down statutes enacted contrary to procedural lawmaking requirements? This idea remains highly controversial. While substantive judicial review is well-established and often taken for granted, many judges and scholars see judicial review of the legislative process as utterly objectionable. This Article challenges that prevalent position and establishes the case for judicial review of the legislative process.
The Article contends that, ironically, some of the major arguments for substantive judicial review in constitutional theory, and even the arguments in Marbury v. Madison itself, are actually more persuasive when applied to judicial review of the legislative process. Furthermore, the Article claims that some of the arguments raised by leading critics of judicial review may actually be employed as arguments justifying judicial review of the lawmaking process. Therefore, countering the orthodoxy in American constitutional law and theory, the Article argues that judicial review of the enactment process is no less important and is, in fact, more justifiable than substantive judicial review.
Keywords: Judicial review, legislative process, due process of lawmaking, constitutional theory, rule of law, rule of recognition
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