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| In this
essay, Professor Allan Hutchinson joins the debate regarding judicial review that
recently has occupied the pages of this and other law journals. Arguing against judicial
review, he challenges Professors Jeremy Waldron and Richard Fallon. Specifically, he
challenges both professors’ commitments to democracy. He argues that democracy by
definition includes a distrust of elite power, which includes the power of judicial
review. Rather than bestowing moral authority on judges to decide questions for society,
a robust version of democracy should place that authority entirely with the polity to
resolve through democratic processes. Therefore, when Professors Waldron and Fallon allow
for the possibility that there is some epistemologically “correct” decision
in cases, they betray the cornerstone of democratic theory — that external truths
do not matter, but instead what matters is the result of internal democratic
deliberation. This is not to say that Professor Hutchinson’s version of a
“strong democrat” is a rights skeptic or moral relativist; rather, the
democrat simply has no concern for moral or rights-oriented truth. |
| Despite his
ultimate disagreement with Professor Fallon, Professor Hutchinson does find value in
Professor Fallon’s argument in favor of multiple veto points. Professor Fallon
argues for judicial review in part by justifying it as an additional veto point in the
democratic process. Professor Hutchinson praises this focus on process and elaborates the
point to demonstrate that democracy should value a system that tests ideas through
multiple decisional stages. Yet, he rejects judicial review precisely because it
sanctions a system that concentrates the power to eliminate democratic decisions —
decisions that have already passed through multiple veto points — in a group of
elites rather than in the polity itself. Therefore, Professor Fallon’s focus on
multiple veto points is useful, but misguided, since judicial review is not a
democratically legitimate veto point. In short, “[i]n a society that takes
democracy seriously, there is no privileged place for judicial proconsuls or their
scholarly cohorts — citizens can govern best when they govern themselves.”
[ More
] |
Suggested citation: Allan C. Hutchinson, A 'Hard Core' Case Against Judicial
Review, 121 Harv. L. Rev. F. 57 (2008),
http://www.harvardlawreview.org/forum/issues/121/may08/hutchinson.pdf |
© 2008 The Harvard Law Review Association
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