Jonathan R. Siegel
Professor of Law
George Washington University |
Publications |
The Institutional Case for Judicial Review |
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97 Iowa L. Rev. 1147 (2012) |
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Abstract |
The "popular constitutionalism" movement
has revived the debate over judicial review. Popular constitutionalists
have attacked judicial review as being illegitimate in a democracy or
inconsistent with original intent, and they have argued that the Constitution
should be enforced through popular, majoritarian means, such as elections
and legislative agitation. This Article shows in response that the judicial
process has institutional characteristics that make judicial review the
superior method of constitutional enforcement. Prior literature has focused
on just one such institutional characteristic: the political insulation
of judges. This Article, by contrast, shows that the case for judicial
review rests on a whole range of institutional distinctions among the
judicial, electoral, and legislative processes. Most important among these
distinctions are that the judicial process is focused (it resolves issues
discretely, without entangling them with other issues), whereas the electoral
process is unfocused; and the judicial process is mandatory (a complainant
can invoke it as of right), whereas the legislative process is discretionary.
The full range of its distinctive institutional characteristics, not just
the political insulation of judges, normatively justifies judicial review. |