Beyond Judicial Review: Assessing Alternative Institutionalizations of Constitutional Review.

Recent controversies over the role of the Supreme Court of the United States in exercising the power of constitutional review of statutes and regulations have tended to lack sufficient attention to alternative institutional designs for carrying out the function as exhibited in extant constitutional democracies. This paper intends to pay proper attention to such alternatives by considering various options in the light of what recent empirical and cross-national comparative scholarship has revealed about actual experiences in different countries. Building on a normative theory of deliberative democratic constitutionalism, it explores tensions between the ideal of constitutional change effected through the people's constituent power and the reality of ongoing-constitutional elaboration outside of that process when government organs of whatever kind must nevertheless decide on the constitutionality of specific policies. Seeking solutions beyond judicial institutionalizations of constitutional review, the paper looks at five types of institutional reform proposals: 1) the establishment of self-review panels in the legislature and regulatory agencies, 2) various mechanisms for inter-branch debate and decisional dispersal concerning constitutional meaning, 3) easing formal amendability requirements, and 4) establishing civic constitutional fora as replacements for traditional amendment procedures. It argues in particular that the last option of deliberative constitutional juries charged with tasks of reviewing constitutional change proposals hold out the singular promise of overcoming standard tradeoffs both between popular sensitivity and electoral independence, and between popular empowerment and deliberative quality. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]