Judicial Review and the Protection of Constitutional Rights

Abstract

Does the effective protection of constitutional rights require a system of robust judicial review? This differs from the question of whether judicial review is democratically legitimate, although the two are often merged. The dominant liberal constitutional discourse concerning the requirement of judicial review has arguably suffered from a degree of insensitivity to the actual effects of specific judicial review systems. In contrast to a fact‐insensitive approach, I suggest that the ‘matrix’ of rights‐protection in any specific system of judicial constitutional review must incorporate two types of calculation. The first must compare incidences of the invalidation of ‘wrong’ statutes (on the ‘gains’ side) with invalidations of ‘right’ statutes and cases of upholding ‘wrong’ statutes (on the ‘losses’ side). The second looks at the gains and losses resulting from the very existence of the system of judicial review (rather than the specific cases that have been upheld or invalidated). It thus recognizes the deep disagreement between individuals about their preferred interpretations of constitutional rights. Under some conditions, the results of this matrix may be modified by arguments about an overlap in preferred articulations of constitutional rights, prudence, and the deliberative nature of the courts that exercise constitutional review, and the paper concludes with a discussion of how this can occur. We do not have to have a court that will strike down laws—a court with the power of judicial review—to have a vibrant language of fundamental rights available to us.

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