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The Darkest Domain: Deference, Judicial Review, and the Bill of Rights

78 Pages Posted: 31 Mar 2005  

Daniel J. Solove

George Washington University Law School

Abstract

Deference presents one of the greatest threats to liberalism in the modern age, undermining judicial review for fundamental constitutional rights such as freedom of speech, freedom of religion, and due process. In contrast to existing critiques which dismiss deference as an ideological tool wielded by conservative judges, this article explores deference more systematically and rigorously, addressing it at its conceptual underpinnings. Deference has a strong conceptual backbone rooted in the long-accepted principle that the judiciary must avoid doing what was done in Lochner - the substitution of judicial judgment for that of the policymaker or legislature. The article argues that deference is a misguided attempt to carry out this principle in practice, an attempt based on an impoverished conception of how the judiciary and government institutions evaluate factual and empirical evidence.

Keywords: consitutional law, deference, judicial review, bill of rights, law and fact

Suggested Citation

Solove, Daniel J., The Darkest Domain: Deference, Judicial Review, and the Bill of Rights. Iowa Law Review, Vol. 84, p. 941, 1999. Available at SSRN: https://ssrn.com/abstract=693281

Daniel J. Solove (Contact Author)

George Washington University Law School ( email )

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HOME PAGE: http://danielsolove.com

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