Judicial Review, Rights, and Democracy
Posted: 30 Jan 2003 Last revised: 21 Jan 2010
In the paper, I claim that substantive moral rights encompass a procedural right to have rights violations adjudicated by an impartial and independent judge. I elaborate on the principle that it is immoral for anyone to be judge in her own cause, which Hobbes enshrines as natural law 17 in Leviathan and Locke invokes to justify the establishment of civil society in his Second Treatise. I contend that Marshall's argument in Marbury v. Madison can be reconstructed as a logically impeccable argument. Furthermore, I argue that the judicial nullification of congressional acts cannot be considered undemocratic when democracy is understood as the political realization of (1) public deliberation, (2) equality, or (3) liberty. In fact, I underscore the deliberative potential of judicial review and I discuss a counterfactual liberty-based argument in favor of judicial review. Finally, I suggest that judicial review could well be in the hands of a jury elected at random among the whole citizenry, in which case judicial review would be even more egalitarian than a system of unlimited congressional powers.
Keywords: rights, judicial review, jurisprudence & legal theory
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