Constitutional Self-Government and Judicial Review: A Reply to Five Critics

Five professors (Rebecca Brown, John Denvir, Roderick Hills, Mark Tushnet, and Jeremy Waldron) have authored review essays for a University of San Francisco Law Review symposium about my book, Constitutional Self-Government. This article replies to them. Constitutional Self-Government argues that judicial review should be regarded not as a constraint upon democracy, but as one ingredient in a complex array of institutions that aim to implement democracy more fully than could be done through legislatures or elections alone. The argument depends upon two claims. One claim is philosophical; it maintains that democracy is not reducible to "government by legislatures" or "government by elections." The second claim is partly empirical; it maintains that judicial institutions, if combined with other institutions, are pragmatically well-suited to achieve some democratic goals. I argue that my critics implicitly accept the first, philosophical claim. They vigorously dispute the second claim. Their criticisms of that claim compel me to deepen and refine the accounts of legislation, voting, and judging offered in Constitutional Self-Government. Their insights also demonstrate the need for continued discussion of what form judicial review should take in the United States and elsewhere. I try to show, however, that my critics do not advance any sound reason to suppose that judicial review is undemocratic.