The Core of the Case Against Judicial Review.

Judicial review of legislation is a controversial practice. Though it is accepted as constitutionally authorized in the United States (and in Canada, South Africa, and many other democracies), and though it is strongly defended by many scholars, it has been criticized by a small number of law professors (Mark Tushnet, for example, and Larry Kramer, and myself) as undemocratic and - from the point of view of political theory - illegitimate. This article seeks to state the case against judicial review as clearly and as forcefully as possible, in a way that is uncluttered by discussions of particular cases in which judicial review has been exercised, and in a way that is uncluttered also by historical discussion of its emergence and use. The article criticizes judicial review of legislation on two main grounds. First, it argues that there is no reason to suppose that rights are better protected by this practice than they would be by legislatures. Secondly, it argues that quite apart from the outcomes that it generates, judicial review is democratically illegitimate. The second argument is familiar; the first argument is much less so. Both arguments state the case against judicial review clearly and correct a number of misconceptions. The case against judicial review is not absolute or unconditional. In this Article it is premised on a number of conditions, which include the conditions that the society in question has good working democratic institutions and that most of its citizens take rights seriously (even though they may disagree about what rights we have). Where these conditions fail, it is harder to make the case against judicial review. And the Article ends by considering the consequences of various kinds of failure. My hope is that this Article can serve as a clear focus for the renewed discussion of the merits of judicial review of legislation which we see both in the United States and in other countries around the world, and a clear target for defenses of judicial review to respond to. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]