Judicial Review and Populism

Abstract

Some critics of judicial review are calling for a populist or "democratic" constitution. They advocate abolition of judicial review in the name of greater democracy. This paper explores reasons to be skeptical of the call to eliminate judicial review. First, some critiques too quickly identify "the people" with elected officials. As a result, they underestimate the contribution judicial review can make to democracy. Second, the focus on eliminating judicial review as a means of achieving democratic politics is not accompanied by a searching examination of what would be required for a strong democracy. Instead of an obsessive focus on the counter-majoritarian difficulty caused by judicial review, we need to give attention to the majoritarian difficulty - the obstructions we face to a meaningful democratic process.

Rather than abolish judicial review, this paper calls for us to broaden the conception of what we see as a constitutional question and to consider what constitutional reforms (using the word "constitutional" in its broad sense) would be required for greater democracy. That would require a shift from obsessive focus on the Court and the document to a wider focus on basic factors that influence what sort of a constitution - in the larger sense - we have. Popular constitutional argument has at times served some of the functions we expect from judicial review. Greater acceptance and appreciation of the role of popular constitutional argument might also contribute to a more democratic constitutionalism.

Keywords: Constitutional law, judicial review, populism, Constitutional history

JEL Classification: K30