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- Title
JUDICIAL REVIEW IN TROUBLED TIMES: STABILIZING DEMOCRACY IN A SECOND-BEST WORLD.
- Authors
ISSACHAROFF, SAMUEL
- Abstract
Debates over the role of judicial review in a constitutional democracy gravitate to one of two poles. Either the debates are framed in terms of the power of courts countering the outputs of a well-ordered legislative process, or they are framed in terms of minority rights that are ever vulnerable to the tyranny of the majority. This Article parts company with the customary debate in two ways. First, the inquiry focuses on the structures of democratic governance rather than the relation between a governing majority and the rights of disfavored individuals or minorities. Second, and contrary to the conditions assumed by critics of judicial review such as Jeremy Waldron and Richard Bellamy, this Article aims to look directly to the "contaminated" domain of our lived experience in the moment rather than an idealized vision of well-ordered parliamentary sovereignty. Especially in a time of populist challenges to the institutionalization of democratic politics, the role of constitutional courts as potential brakes on the politics of immediacy takes on greater and greater significance. Relying on examples from jurisdictions around the world, this Article sets out three types of interventions ranging in terms of how problematic they are for democratic governance. First is the use of constitutional review to prevent entrenched officeholders from undermining their electoral accountability, as seen in places as far removed as Taiwan and North Carolina. The second is the role of court interventions to bolster what is termed the "soft power" of democracy in which institutional norms compel a politics of negotiation and compromise. Finally, there is the temptation for courts to substitute judicial authority for failing state competence of democracies in general, and of the legislative branches in particular.
- Subjects
JUDICIAL review; DEMOCRACY; DEBATE; SOVEREIGNTY; WALDRON, Jeremy; BELLAMY, Richard
- Publication
North Carolina Law Review, 2019, Vol 98, Issue 1, p1
- ISSN
0029-2524
- Publication type
Article