Federalism and Democracy: A Defence of Federalism-Based Judicial Review

30 Pages Posted: 16 Oct 2012

Date Written: October 15, 2012

Abstract

Not only critics of judicial review of legislation, but sometimes even those who support its use to protect the rights of individuals or minorities are critical of judicial review on federalism grounds. I want to argue that they are mistaken. When it is used to protect a federal division of powers, judicial review of legislation is not only counter-majoritarian, but also pro-majoritarian.

In a federation, democracy happens at more than one level, a democratic federal legislature and democratic state legislatures. Thus, insisting that issues of federalism must be resolved democratically obscures the fact that, in a federation, there are different decision-makers with different constituencies and democratic claims of equal strength. To allow one of these decision-makers to impose its understanding of federalism on the other is no less undemocratic than to subject it to judicial review.

“Political safeguards of federalism” cannot resolve this problem, because they are either ineffective at giving states a voice in federal legislation or, if effective, they allow states to override the views of the national majority. Judicial review is the best practical solution for settling disputes about federalism. From a democratic standpoint, it is not a mere loss, but an important investment.

Keywords: federalism, judicial review, constitutional law, political safeguards

Suggested Citation

Sirota, Leonid, Federalism and Democracy: A Defence of Federalism-Based Judicial Review (October 15, 2012). Available at SSRN: https://ssrn.com/abstract=2162161 or http://dx.doi.org/10.2139/ssrn.2162161

Leonid Sirota (Contact Author)

AUT Law School ( email )

AUT City Campus
Private Bag 92006
Auckland, 1142
New Zealand
+64 9 921 9999 ext 5531 (Phone)

HOME PAGE: http://doubleaspect.blog

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