Between judicial and legislative supremacy: A cautious defense of constrained judicial review

Alon Harel*, Adam Shinar

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

21 Scopus citations

Abstract

This article explores and evaluates theories that we label "theories of constrained judicial review." These theories, which include popular constitutionalism, departmentalism, and weak judicial review, challenge both legislative and judicial supremacy and adopt an intermediate position that grants courts a privileged but not supreme role in interpreting the Constitution. To evaluate such theories, this article develops both a negative and a positive argument. It criticizes the existing justifications of constrained judicial review and provides a new justification for such theories. More specifically, we argue that the ultimate justification for constrained judicial review cannot be grounded in instrumentalist or consequentialist concerns, namely in the allegedly superior decisions rendered by courts within systems of constrained judicial review. Moreover, these theories cannot be defended by appealing to extant non-instrumental legitimacy-based justifications. Instead, the justification for constrained judicial review must be grounded in what we call "the right to a hearing." We distinguish between a strong (or robust) right to a hearing (which requires judicial supremacy) and a weak right to a hearing (which requires constrained judicial review). Thus, the debate between advocates of judicial supremacy and advocates of constrained theories of judicial review should be construed as a debate concerning the nature and scope of the right to a hearing. Furthermore, systems of constrained judicial review, if they are to guarantee the right to a hearing, must be designed such that non-adjudicative bodies reconsider individual grievances. By doing so in a way that is sensitive to the individual grievance and its particularities, these bodies undertake adjudicative functions.

Original languageAmerican English
Pages (from-to)950-975
Number of pages26
JournalInternational Journal of Constitutional Law
Volume10
Issue number4
DOIs
StatePublished - Oct 2012

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