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Judicial Review in Context

A Response to Counter-majoritarian and Epistemic Critiques

Marcus Schulzke and Amanda Carroll

This essay defends judicial review on procedural grounds by showing that it is an integral part of American democracy. Critics who object to judicial review using counter-majoritarian and epistemic arguments raise important concerns that should shape our understanding of the Supreme Court. Nevertheless, critics often fail to account for the formal and informal mechanisms that overcome these difficulties. Critics also fail to show that other branches of government could use the power of Constitutional interpretation more responsibly. By defending judicial review in the American context, this essay demonstrates that judicial review is not inherently undemocratic.

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Judicial Review, Constitutional Juries and Civic Constitutional Fora

Rights, Democracy and Law

Christopher F. Zurn

This paper argues that, according to a specific conception of the ideals of constitutional democracy - deliberative democratic constitutionalism - the proper function of constitutional review is to ensure that constitutional procedures are protected and followed in the ordinary democratic production of law, since the ultimate warrant for the legitimacy of democratic decisions can only be that they have been produced according to procedures that warrant the expectation of increased rationality and reasonability. It also contends that three desiderata for the institutionalization of the function of constitutional review follow from this conception: structural independence, democratic sensitivity and the maintenance of legal integrity. Finally, evaluating three broadly different ways of institutionalizing constitutional review - solely in appellate courts, in deliberative constitutional juries of ordinary citizens and in a combined system of constitutional courts and civic constitutional amendment fora - it argues that the third arrangement would perform best at collectively fulfilling the sometimes antithetical desiderata.

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Deliberation and Courts

The Role of the Judiciary in a Deliberative System

Donald Bello Hutt

democracy. I show that endorsing a systemic approach entails a rejection of a privileged treatment of judges in terms of their deliberative capacities, and that this has implications for debates on judicial review of legislation. Significantly, deliberative

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The 2023 Judicial Reform That Wasn't

From Non-decision Constitution-Making to Decision and Back

Joshua Segev

2016: 54–55 ). The powers of the Court have been systematically augmented: the scope and depth of judicial review has been enlarged through the annulment of the requirement for standing, the elimination of the political question doctrine, and the

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The Road Not Taken

Menachem Begin's Position on the Formation of a Democratic Regime for Israel

Maya Mark

conception of government as it has been discussed thus far. This principle was to be implemented through the exercise of judicial review by a strong and independent judiciary vested with the authority to invalidate legislation that runs counter to the

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An Attack on the Rule of Law in Israel

Suzie Navot and Guy Lurie

safeguard them, as well as the issue of judicial review. These are not just legacies of the past—they remain relevant issues today. Despite the important constitutional milestone of 1992 that resulted in the Knesset's transition from an unlimited

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Egalitarian Liberalism, Distributive Justice and the New Constitutionalism

David Bilchitz

These modern constitutions that have been adopted largely in the Global South enshrine a set of divergent values and rights that embrace both political philosophical concerns relating to liberty as well as distributive equality. This article seeks to grapple with the approach to distributive justice that can best give expression to the multiple normative commitments of these constitutions as well as key institutional features thereof. I argue for these societies to adopt what I term a two-tier theory of distributive justice: these theories require a set pattern or threshold to be achieved in a certain domain but also allow for a tolerable variation in resource distribution in another domain. I seek to show how two of the foremost egalitarian liberal theories of distributive justice – that of Ronald Dworkin and John Rawls – exemplify this structure as well as the resources they have to address the problems thereof. I then argue that a two-tier structure of a theory of distributive justice can help explain and reconcile key features of these modern constitutions. In particular, I shall seek to show the manner in which such theories conform to understandings of the role of a constitution, and the importance of preserving space for democratic decision-making. At the same time, two-tier theories assist in delineating the appropriate role constitutional courts should play in addressing the distribution of economic resources in society. These theories also have important implications for the role of the state and markets. Such a structure, I shall conclude, gives effect to a particular conception of equality as well as liberty and so manages to reconcile these two normative values.

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Theory Versus Practice

History Says That Practice Makes Perfect (And That Judges Are Better Too)

Scott Merriman

Theory argues that rights-based judicial review fails because it does not have popular support. However, examining actual events in battles over freedom of speech, privacy and civil rights demonstrates that this theory often fails when applied. Those arrested during the First World War in America often only received redress through administrative agencies. Civil rights protestors' experiences prove that the federal courts were the only ones generally to protect their rights, and that the legislatures failed to act. Similarly, judicial review increased the freedom of the press during the 1960s, which in turn boosted the civil rights movement. Finally, it was the courts which helped Americans to realize their right to privacy. Included in that right to privacy was the right for people to marry regardless of their race. Overall, courts and administrative agencies, particularly at the federal level, do a better job at protecting rights than legislatures.

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Editorial

Patrick Lenta

The theme of this special issue of Theoria is the relationship between constitutions, constitutional review and democracy. The four essays that make up the issue advance new arguments, offer fresh perspectives and make innovative proposals in response to a cluster of questions: what institutional arrangement of constitutional review best realizes the ideals of democracy? How does rightsbased judicial review fare, relative to constitutional review carried out by other branches of government, from the perspectives of democratic legitimacy and epistemic competence? Are courts more likely to uphold individual rights than legislatures? If democracy requires the participation of citizens in ordinary political decision making, should citizens be permitted to participate in the periodic revision of formal constitutions?

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Votes and Resources: Political Finance in Germany

Peter Pulzer

“Votes count,” Stein Rokkan asserted many years ago, “but resources

decide.”1 Political finance is one of the many arenas in which Alexander

and Shiratori’s “conflict between real inequalities in economic

resources and idealized equalities in political resources” is fought out.2

Yet the battleground is more complex than either of these authorities

suggests. Votes are also a resource. They legitimate, and they can also

punish, if those who cast them think that economic resources are

being used unreasonably. Above all, the determination of electoral

outcomes involves players others than voters and moneyed

interests. In almost all modern democracies there are referees of

varying effectiveness. In general, the referee is “the state,” but much

depends on the organs through which the state operates. Governments

are not necessarily neutral agents; they and the parliaments

that legislate on the regulation of political finance may merely reflect

the interests of dominant or established parties. Political finance can,

however, also be regulated, as for instance in Germany or the United

States, by judicial review. In addition the media almost everywhere

play an unpredictable role as spectator, watchdog or interested participant.