Political-Liberal Legitimacy and the Question of Judicial Restraint

25 Pages Posted: 11 Jan 2019

Date Written: January 1, 2019

Abstract

The term "judicial restraint," applied to courts engaged in judicial constitutional review, can refer ambiguously to any one or more of three possible postures of such courts, which we here will distinguish as "quiescent," "tolerant" and "weak-form." A quiescent court deploys its powers sparingly, strictly limiting the agenda of social disputes on which it will pronounce in the constitution's name. A tolerant court confirms as valid laws whose constitutional compatibility it finds to be reasonably sustainable, even though it independently would conclude to the contrary. A weak-form court acts on the understanding that its pronouncements on matters constitutional will be duly open to considered rejection by other political agencies.

Theory commonly tends to treat the question of judicial restraint as turning on a bedrock political value of democracy. We may also, however, understand debates over judicial restraint in the light of a different bedrock value, that of political legitimacy. Where democracy is the focal concern, debaters may tend toward conflating into one measure the three dimensions of judicial restraint. A focus on legitimacy rather tends toward a dis-bundling of the three dimensions, thus complicating the choices while also clarifying the stakes. The political philosophy of John Rawls helps us to see how and why this occurs.

Keywords: Judicial Restraint, Constitutional Law, Political Legitimacy, Political Liberalism, John Rawls

Suggested Citation

Michelman, Frank I., Political-Liberal Legitimacy and the Question of Judicial Restraint (January 1, 2019). Available at SSRN: https://ssrn.com/abstract=3308805 or http://dx.doi.org/10.2139/ssrn.3308805

Frank I. Michelman (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
617-495-4628 (Phone)
617-495-1110 (Fax)

HOME PAGE: http://www.law.harvard.edu/faculty/directory/facdi

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