Monday, August 9, 2010
Louis Michael Seidman (Georgetown University Law Center) has posted Acontextual Judicial Review to SSRN.
Is constitutional judicial review a necessary component of a just polity? A striking feature of the current debate is its tendency to proceed as if the question could be answered in the same way always and everywhere. Defenders of constitutional review argue that it is a conceptually necessary feature of constitutionalism, the rule of law, and the effective protection of individual rights. Critics claim that it is necessarily inconsistent with progressive politics and democratic engagement. Largely missing from the debate is a fairly obvious point: Like any other institution, constitutional review must be evaluated within a particular temporal, cultural, and political context.
Part I of this article lays out the groundwork for my discussion by separating out several questions that are too often conflated. It addresses the distinction between arguments for constitutionalism and for judicial review, between arguments for judicial review grounded in political and substantive justice, and among arguments for different types of judicial review. The Part concludes that the embrace of constitutionalism, the choice between substantive or political justice, and the choice among different types of judicial review all depend upon context.
Given the conclusions in Part I, the argument in Part II will come as no surprise. The wisdom of providing for judicial review turns on the type of judicial review we are talking about and on the relationship between judicial power on the one hand and constitutionalism, political, and substantive justice on the other. All of these factors are different in different times and places. It follows that judicial power to invalidate statutes and executive actions is a contingent good.
A brief coda discusses the implications of this argument for the discipline of comparative constitutional law.