The Democratic Character of Judicial Review

Abstract

A theme of uneasiness, and even of guilt, colors the literature about judicial review. Many of those who have talked, lectured, and written about the Constitution have been troubled by a sense that judicial review is undemocratic. Why should a majority of nine Justices appointed for life be permitted to outlaw as unconstitutional the acts of elected officials or of officers controlled by elected officials? Judicial review, they have urged, is an undemocratic shoot on an otherwise respectable tree. It should be cut off, or at least kept pruned and inconspicuous. The attack has gone further. Reliance on bad political doctrine, they say, has produced bad political results. The strength of the courts has weakened other parts of the government. The judicial censors are accused of causing laxness and irresponsibility in the state and national legislatures, and political apathy in the electorate. At the same time, we are warned, the participation of the courts in this essentially political function will inevitably lead to the destruction of their independence and thus compromise all other aspects of their work.

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