A Theory of Judicial Review
44 Pages Posted: 9 Mar 2016 Last revised: 11 Mar 2016
Date Written: March 9, 2016
This is the text of a lecture I delivered in two venues: at Baylor University (the annual Robert T. Miller Lecture, sponsored by the Department of Political Science, Oct. 26, 2015) and, later, at Boston College Law School (sponsored by the Clough Center for Constitutional Democracy, Feb. 29, 2016). The lecture is drawn from my new book, which will be published later this year: A GLOBAL POLITICAL MORALITY: HUMAN RIGHTS, DEMOCRACY, AND CONSTITUTIONALISM.
If normative, as such a theory typically is, a theory of judicial review is based, implicitly if not explicitly, on one or more normative premises. The normative premises on which the theory of judicial review elaborated and defended in this lecture is based constitute “the morality of human rights,” as I have long called it. (See, e.g., Michael J. Perry, “The Morality of Human Rights” (2013), http://ssrn.com/abstract=2274381.) The morality of human rights, as I explain in the book from which this lecture is drawn, is mainly, though not only, a political morality — indeed, the first truly global political morality in human history. If there is a less contentious normative basis for a theory of judicial review, I do not know what it is.
In the penultimate section of this lecture, I bring the theory of judicial review elaborated and defended here to bear both on the U.S. Supreme Court’s decision in District of Columbia v. Heller (2008) and on the U.S. Supreme Court’s capital punishment jurisprudence. In a chapter referenced at the end of this lecture — a chapter of A GLOBAL POLITICAL MORALITY — I bring the theory to bear on several enduring constitutional controversies, including the controversies over capital punishment, race-based affirmative action, same-sex marriage, physician-assisted suicide, and abortion.
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