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Waldron_CoreOfTheCaseAgainstJudicialReview

Waldron_CoreOfTheCaseAgainstJudicialReview - WALDRON...

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W ALDRON 3/23/2006 6:53:29 PM 1346 Jeremy Waldron The Core of the Case Against Judicial Review abstract. This Essay states the general case against judicial review of legislation clearly and in a way that is uncluttered by discussions of particular decisions or the history of its emergence in particular systems of constitutional law. The Essay criticizes judicial review 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 democratic legislatures. Second, it argues that, quite apart from the outcomes it generates, judicial review is democratically illegitimate. The second argument is familiar; the first argument less so. However, the case against judicial review is not absolute or unconditional. In this Essay, it is premised on a number of conditions, including that the society in question has good working democratic institutions and that most of its citizens take rights seriously (even if they may disagree about what rights they have). The Essay ends by considering what follows from the failure of these conditions. author. University Professor in the School of Law, Columbia University. (From July 2006, Professor of Law, New York University.) Earlier versions of this Essay were presented at the Colloquium in Legal and Social Philosophy at University College London, at a law faculty workshop at the Hebrew University of Jerusalem, and at a constitutional law conference at Harvard Law School. I am particularly grateful to Ronald Dworkin, Ruth Gavison, and Seana Shiffrin for their formal comments on those occasions and also to James Allan, Aharon Barak, Richard Bellamy, Aileen Cavanagh, Arthur Chaskalson, Michael Dorf, Richard Fallon, Charles Fried, Andrew Geddis, Stephen Guest, Ian Haney-Lopez, Alon Harel, David Heyd, Sam Issacharoff, Elena Kagan, Kenneth Keith, Michael Klarman, John Manning, Andrei Marmor, Frank Michelman, Henry Monaghan, Véronique Munoz-Dardé, John Morley, Matthew Palmer, Richard Pildes, Joseph Raz, Carol Sanger, David Wiggins, and Jo Wolff for their suggestions and criticisms. Hundreds of others have argued with me about this issue over the years: This Essay is dedicated to all of them, collegially and with thanks.
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W ALDRON 3/23/2006 6:53:29 PM the core of the case against judicial review 1347 essay contents introduction 1348 i. definition of judicial review 1353 ii. four assumptions 1359 A. Democratic Institutions 1361 B. Judicial Institutions 1363 C. A Commitment to Rights 1364 D. Disagreement About Rights 1366 iii. the form of the argument 1369 iv. outcome-related reasons 1376 A. Orientation to Particular Cases 1379 B. Orientation to the Text of a Bill of Rights 1380 C. Stating Reasons 1382 v. process-related reasons 1386 vi. the tyranny of the majority 1395 vii. non-core cases 1401 conclusion 1406
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W ALDRON 3/23/2006 6:53:29 PM the yale law journal 115:1346 2006 1348 introduction Should judges have the authority to strike down legislation when they are convinced that it violates individual rights? In many countries they do. The best known example is the United States. In November 2003, the Supreme
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