13 - Judicial Review

Summary

In this chapter I show that the judicial branch, as it was designed at the end of the 18th century, jeopardized the democratic nature of the incipient governments. As many contemporary critics of judicial review maintain, I argue that it is “offensive” (“it seems something of an insult”) for a democratic society, and for the equal dignity of its members, that in the face of profound constitutional disagreements, a minority of judges, and not the representatives of the people, pronounce the last word on the matter (Waldron 1999). I explore the “democratic objection” against judicial review through a diversity of cases and debates, including Alexander Hamilton’s early defense of judicial review in Federalist Papers n. 78, and John Marshall’s famous decision in Marbury v. Madison. I conclude this chapter by showing that the “decisive argument” against the dominant, standard position on the justification of judicial review is (what I call) the “interpretive gap” argument.