Dialogue and Judicial Review

Abstract

Most normative legal scholarship regarding the role of judicial review rests upon a descriptively inaccurate foundation. The process of constitutional interpretation does not set electorally accountable government against unaccountable courts. The premise of electorally accountable decision making assumes an identifiable majority actually exists. In addition, the premise of judicial interference assumes that judicial decisions are final, when they are not. A more accurate view of the constitutional system needs to take into account constituency representation, the spaciousness of the constitutional text, and the dynamic nature of constitutional interpretation. The actual role of judicial review is dialogic. The courts interpret the Constitution, but they also facilitate and mold a society wide constitutional dialogue.

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