Judicial Review and Moral Rights


Larry Alexander

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American style judicial review, until recently much celebrated for its rendering legislative and executive actions subject to judicial policing for violations of individual rights, is now subject to mounting attacks under the banner of popular sovereignty. Many who were for a long time quite sanguine about the so-called "countermajoritarian difficulty" have apparently now become convinced that it is a countermajoritarian nightmare. Larry Kramer wants to take constitutional interpretation in the United States away from the Supreme Court and put it in the hands of "the People," even in cases where individual rights are at stake. Mark Tushnet wants the U.S. Constitution to be "thinned," that is, reduced from its welter of specific provisions to the broad platitudes of its Preamble and the Declaration of Independence. On a more theoretical level, Jeremy Waldron has been consistently denouncing judicial review and the possibility of its invading other parts of the Anglophone world for its antidemocratic character, and particularly so when it purports to protect our rights against the government. And many other theorists have joined the piling on, on both positive and normative grounds.

These attacks come, perhaps ironically, but perhaps unsurprisingly, as judicial review has taken hold in Europe and is poised to take hold elsewhere. My purpose here is to inquire whether these attacks have merit, and if so, just what that merit is. Is American style judicial review as a means of protecting our rights to be celebrated or condemned? Or is that a question that can even be answered independently of some partisan view of what our rights are and some empirical hunches regarding the best strategies for vindicating them? In what follows I shall not give a definitive answer to these questions, though I shall attempt to rule out some answers. What I will do is provide a framework for thinking about these questions and their possible answers.