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Debate Club

Should We Get Rid of Judicial Review?

Mark Tushnet and Erwin Chemerinsky debate.

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Since Marbury v. Madison established the authority of federal courts to review acts of Congress, judicial review has played a key part in many of the most cherished—and most controversial—social reforms. The right to an abortion and the end of segregated schooling, for example, came from the courts—but both have been criticized as judicial activism.

Such activism has long been criticized by the right, but a few liberal scholars have begun to question Marbury's wisdom. Should we get rid of judicial review?

Mark Tushnet is professor at Georgetown University and the author of A Court Divided: The Rehnquist Court and the Future of Constitutional Law. Erwin Chemerinsky is Alston & Bird Professor of Law at Duke University School of Law.

Tushnet: 5/30/05, 09:34 AM
I'd like to begin this conversation at ground level—that is, by trying to figure out how a person who is both a small-d democrat and a constitutionalist would design a system of judicial supervision of executive and legislative action in a nation like the United States, which is reasonably democratic already. Would such a person allow the courts to strike down legislation that, in the courts' judgment, violated the Constitution? And, if so, what sort of judicial review would that person prefer—one where the courts' decisions could be themselves overturned only by a fairly difficult process of constitutional amendment, or one where the legislature could respond to the courts by re-enacting the statute? (I have something like the Canadian model of judicial review in mind in mentioning the latter.)

The starting point has to be, I think, that there's always going to be reasonable disagreement about whether a particular statute is consistent with the Constitution. (And, for present purposes at least, I'm willing to accept a fairly narrow role for the courts when the legislature enacts a statute that cannot be reconciled with any reasonable interpretation of the Constitution. But, I think, such statutes are extremely hard to come by; the example I use in my classes, and even then with some qualifications, are statutes making it a crime to burn a flag as a means of political protest.) The question then immediately arises: In cases where there's reasonable disagreement—between the legislature and the courts—over what the Constitution means, whose judgment about the Constitution's meaning should prevail?

I've never seen a good argument for the view that the courts' judgments should. Rather, what you get are arguments that the courts are more likely than the legislature to arrive at the interpretation more consistent with the position preferred by the person making the argument—but that certainly can't count as a reason for preferring the courts to the legislature for anyone who thinks that the people are entitled to govern themselves by making reasonable, though contestable, judgments about what the Constitution means.

Now, there are going to be lots of details of institutional design that would have to be worked out. What do you do about actions by police officials or the President? (My first cut would be to say that the courts could properly insist that there be explicit statutory authorization for executive actions that, in the courts' judgment, violate the Constitution.) What do you do about legislation enacted by state legislatures or city councils? (Here my first cut would be to insist on the possibility of action by the national legislature to invalidate or authorize the lower-level legislation, which would transform the issue of judicial review into one about who should have the burden of getting the national legislature to act—and, I wouldn't have any problem with a system in which the courts could act initially, invalidating lower-level legislation and leaving it to the proponents of the legislation to get the national legislature to act.)

But, in the end, I doubt that there's a good argument—from the point of view of a person who is a democrat and a constitutionalist—for giving the courts the last word on what the Constitution means. Maybe, Erwin, you can come up with one. We'll see.

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Chemerinsky: 5/31/05, 09:12 AM
At the outset, I want to say that it is an honor and pleasure to participate in this exchange with you, Mark. You are truly one of the preeminent constitutional scholars in all of American history and a model to all of us who aspire to write in the field.

Although I enormously admire your work, I confess that I was not a fan of your book Taking the Constitution Away From the Courts. It argues for the elimination of constitutional judicial review. It is a seminal work in a growing body of literature called "popular constitutionalism." There is no precise definition of popular constitutionalism and there are differences among its advocates. But the core characteristic is eliminating the judiciary as having the final word as to the meaning of the Constitution.

I vehemently disagree with this wave of scholarship, including your proposal to eliminate constitutional judicial review. In addition to being a law professor, I am a civil liberties lawyer, and for my clients it is often the courts or nothing. In the last few years, I have represented, in the Supreme Court and lower federal courts a man facing a death sentence in North Carolina, a homeless man challenging a Ten Commandments monument that sits between the Texas state capitol and the Texas Supreme Court, a man who was raped in a prison in Illinois, a man who has spent the last 17 years in prison in California for a crime that I am absolutely convinced he did not commit, a man who received a sentence of 50 years to life in prison for stealing $153 worth of videotapes, and several others like them who have truly no chance of success through the political process.

Mark, you say you've never heard a persuasive argument as to why someone committed to "democracy" would want courts to determine the meaning of the Constitution when there is disagreement over its meaning. I think that the basic answer came from Marbury v. Madison: the limits of the Constitution have no meaning if they are not enforced and the other branches of government see their role as pleasing constituents, not upholding the Constitution. Courts, especially federal judges who are not electorally accountable, are more likely to see their role as enforcing the Constitution.

Surely, a commitment to democracy does not justify eliminating judicial review for the actions of unelected officials: police, prison guards, school principals, administrative agency personnel. Even for elected officials, I am skeptical that local school boards or zoning boards see their role as interpreting and enforcing the Constitution. Nor do I believe that this is different for Congress. Their central focus is getting reelected and constitutional issues are likely to be resolved in favor of pleasing constituents.

Your central charge is that judicial review is "anti-democratic." But this is so only if democracy is defined as majority rule. American society never has been democratic in that sense. The composition of the Senate, the selection of the President by the Electoral College, and the unelected federal judiciary all belie such a definition. I think that a far more nuanced definition of American democracy is needed, one that includes both procedural values, such as majority rule, and substantive commitments, such as fundamental rights. In this way, judicial review interpreting and enforcing the Constitution is consistent with, not at odds with, American democracy.

Sometimes the first assignment in my constitutional class has been for students to read a copy of the Stalin-era Soviet Constitution and the United States Constitution. My students are always surprised to see that the Soviet Constitution has a far more elaborate statement of rights than the American Constitution. I also assign a description of life in the Gulags. I ask how it can be that a country with such detailed statements of rights in its constitution could have such horrible abuses.

The answer, of course, is that in the Soviet Union no court had the power to strike down any government action. Judicial review, as we have known it since Marbury v. Madison, is at the core of ensuring our freedom.

Tushnet: 5/31/05, 03:06 PM
I think you're making several points here. First, you note that as a litigator you represent people "who have truly no chance of success through the political process." Your work as an advocate is entirely admirable—given the existence of judicial review. But I'd note a couple of things. (a) There's something of an air of the triumph of hope over experience in your enumeration of cases, particularly, of course, the California "three strikes" case. Given the outcome, why should we think that you had some (well-founded) hope of success in the courts? (b) You really have to establish that your clients ought to win in the political process. But to do that, you'd have to show why your (and their) view of what our fundamental rights are is correct, or at least better than the view held by the legislators who adopted the statutes you're challenging. Simply asserting that you were making claims about fundamental rights doesn't do that.

Second, you suggest that judges are "more likely to see their role as enforcing the Constitution." I'm not sure that's true across the board. Often, I think, judges and legislators have the same view of their role; when courts invalidate what the legislators do, they're simply disagreeing with them about what "enforcing the Constitution" requires. To use a provocative example: In my view the "right to choose" and the "right to life" positions are equally principled interpretations of what the Constitution requires (or, in the case of some versions of the "right to life" position, allows). The fact that legislators might adopt one or the other position because of their constituents' views—because, in your terms, they want to please their constituents—seems to me simply irrelevant to the question, Which institution's interpretation of the Constitution should prevail? (To be explicit, I don't see anything problematic about legislators' responding to their constituents' principled views even if the legislator's reason for doing so is merely to get re-elected.)

Another way to put this is to take you up on your point that democracy involves substantive commitments to fundamental rights. No doubt, but what's at stake in virtually every constitutional controversy is the determination of what precisely counts as a fundamental right—and the institutional question is whether the courts' view or the legislature's should prevail. I agree that there are some issues on which "pleasing their constituents" rather than "enforcing the Constitution" drives legislators. The problem is that those issues involve things like closing armed forces bases—matters on which the courts have nothing to say. Where the courts speak, they do so on matters about which legislatures typically have taken reasonable positions on what counts as a fundamental right (even if they reject advocates' claims that such rights are violated).

(I agree that we need some system for supervising the actions of subordinate officials. As I indicated in my initial post, we can get a lot of mileage out of a requirement of express authorization for constitutionally troubling actions.)

Finally, I wonder why you don't also give your students a copy of the Dutch Constitution, which has a good list of fundamental rights and then says, "The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts." The Netherlands isn't utopia, of course (but then, neither is the United States), but it's not Stalinist Russia either.

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Chemerinsky: 6/1/05, 09:18 AM
The core of your position seems to be that if there is disagreement over the meaning of the Constitution, there is no reason to prefer having the court make the choice rather than the political process. My view, in contrast, is that society is better off having an institution largely insulated from majoritarian politics determine the meaning of the Constitution and enforce it.

I would defend my view on two different levels. First, from a process perspective, a person designing a Constitution concerned about restraining the majority and protecting minority rights should want a non-majoritarian institution to interpret and enforce the Constitution. Second, from a substantive perspective, I believe that the values I care about—advancing liberty and equality—are most likely to occur with judicial review.

As to the first point, what makes the Constitution different from all other laws is that it is much more difficult to change. Your objection to judicial review on the grounds of democracy could be made against the Constitution itself. The Constitution, of course, is anti-democratic in that none of those alive today (and not even most of our ancestors) ever approved it and a simple majority cannot change it. A key aspect of the Constitution is protecting minorities, such as unpopular political minorities, or racial minorities, or individuals like prisoners or criminal defendants who have little influence in the political process.

The question is who is more likely to fulfill this goal: elected representatives or an unelected judiciary? As I argued yesterday, I think that elected representatives see their primary goal as pleasing constituents, even when it means ignoring constitutional values. To the extent that you are arguing that legislatures are just as likely to be responsive and protective of minorities, I very much disagree. Legislatures respond to those who exercise influence and control in the political process and, by definition, this is not racial minorities or those with unpopular views or prisoners or criminal defendants. I also believe that the judicial process, where all with claims are heard and courts issue written opinions, is best suited to developing the meaning of the Constitution over time.

As to my second point, I understand your argument to be that there is no way to argue that one result is right and the other wrong in term of the meaning of the Constitution; therefore, choices should be left to the political process. I don't begin with that premise. I do have substantive value preferences. These include that the Supreme Court was right in ordering desegregation and striking down Jim Crow laws, in protecting reproductive privacy including abortion rights, in finding a right to privacy for consenting adults in their bedroom. Mark, you're correct that there are two steps to my argument: one is to defend these value choices and the other is to show that they are more likely to be protected through the courts than the political process. I believe that both of these steps can be accomplished, though obviously not in the limited space of this posting.

I mentioned that my commitment comes from my experience and orientation as a civil liberties lawyer. You are correct that both of these same steps need to be demonstrated as to my cases and clients. But it is precisely because I believe that the rights of prisoners and religious minorities should be protected and are more likely to be protected in the courts that I most disagree with your position. You say that looking to the courts is the triumph of hope over experience. I disagree; prisoners may often lose in the courts, but they do much worse in a political process where there is no constituency for protecting their rights.

Finally, you ask why I don't give my students a copy of the Dutch Constitution which exists without judicial review as we know it. You are surely right that a free society can exist without judicial review. But that does not deny that judicial review can serve as a check against tyranny and repression. If I were starting from scratch, I'd want my government to have judicial review to have a crucial protection of freedom and minority rights because I see what has happened in some societies without it, even though others lacking it have done fine.

Tushnet: 6/1/05, 10:42 PM
Erwin, it seems to me that part of your position trades on an ambiguity about the term "minorities," and that another part rests on a—to me—unjustified suspicion that the reasons you're able to provide for your position are going to persuade judges but wouldn't persuade your co-citizens.

Obviously, the mere fact that someone is a member of a minority says nothing about whether the majority is unjustified in "imposing" its policy choices—including its choices about what exactly constitutional values mean in particular circumstances—on the "minority." After all, another description of "minorities" is "people who have lost elections." So, you have to have some account of why it's OK for the majority to prevail sometimes—when it wins elections, including elections that might turn on issues, like abortion or gay rights, on which the majority has, as I suggested earlier, principled views—but not other times.

Obviously one good reason for thwarting the majority's choices is that the losers didn't have a fair shot at winning. That might have characterized the situation of African Americans during the era when there was widespread disfranchisement. I'm skeptical of claims that it characterizes African Americans today, or those who have a principled pro-choice position, or gays.

John Hart Ely tried to work out the idea that fully enfranchised groups might not have a fair shot at winning, but his quite elaborate theory of "prejudice" doesn't work, it seems to me. Often what's described as prejudice—against gays, for example—is better described as disagreement over the policies advocated by (most) gays, disagreement that is, once again, principled in the sense that it rests on a reasonable (although often to me erroneous) interpretation of the Constitution. But I don't see how this sort of policy disagreement is different from disagreements about all sorts of policies—about whether it's a good idea to allow slot machines at race tracks, for example. If "minorities" lose, it's because they haven't been able to persuade enough people that their positions are right, not because they don't have a fair shot at winning.

That point also weakens your position on getting the courts to enforce the "right" rights. As you say, you do have reasons to support your positions on what the Constitution means, and you think that those reasons are good enough to persuade a majority of the Supreme Court to accept your interpretation. But, if those reasons are good enough to persuade the judges, why won't they be good enough to persuade your co-citizens? After all, the rights you like weren't put into the Constitution by judges; they were put in by ordinary people trying to figure out what a good way of organizing a society was. I don't think that judges—even judges insulated from the pressures of election—are anything special. They aren't any smarter than ordinary people, and the reasons that persuade judges should persuade ordinary people too.

I think that devoting effort to persuading ordinary people about what the right rights are is better, in democratic terms, than offering those reasons to judges. And, it seems to me, as a strategic matter you're likely to be better off if you get ordinary people to agree with you. As James Bradley Thayer put it over a century ago, relying on the judges to bail us out means that correction of our errors comes from outside. Or, as we would put it today, persuading ordinary people by giving them the reasons you have for your position gives all of us "ownership" of the Constitution, which is, again, pretty clearly a good thing.

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Chemerinsky: 6/2/05, 09:19 AM
Mark, your latest posting focuses very much on what I need to prove to justify judicial review. Putting the burden of proof on one's opponent is a clever rhetorical strategy, but here it is misplaced. I am defending a practice that has been part of American democracy since at least Marbury v. Madison in 1803 when the Supreme Court declared that "it is emphatically the province and duty of the judicial department to say what the law is." You are urging a radical change in American government: the elimination of judicial review—or, at the very least, the elimination of courts having the final word (absent constitutional amendment) as to the meaning of the Constitution. The burden is yours to show that the democratic process will be as likely to uphold the Constitution as the judiciary.

In my prior posting, I pointed to two reasons why it is desirable to have courts with the power to invalidate legislative and executive actions. First, the Constitution exists primarily to safeguard some matters from majority rule and therefore its enforcement should not be left solely to the majoritarian process. You say that there needs to be a theory as to which minorities deserve protection and which not. I think this misses the point; the crucial issue is who should decide which minorities need protection under the Constitution. Once it is agreed that there are minorities protected by the Constitution—political minorities, racial minorities—then it should not be for the majority to decide whether there is protection. It is preferable to have an institution, largely insulated from majoritarian politics, decide what minorities need protection from the majoritarian process so as to fulfill the Constitution's commitments to values such as freedom of speech, equality, and due process.

You also say that there is no reason why enfranchised minorities cannot protect themselves through the political process. I disagree. I think cases like Romer v. Evans show that gays and lesbians often won't be protected through the political process. Cases like United States v. Virginia show that women still are sometimes unprotected in the political process. The tremendous racial inequality that persists in our society shows that racial minorities often will be unprotected without the courts. Criminal defendants and prisoners are minorities who will have their rights protected in the courts or nowhere.

Second, I argued that many of the values I care about are more likely to be protected in the courts than through the political process. You express skepticism that courts are more likely to do this than the political process. Social psychologists tell us that how roles are defined has a powerful effect on behavior. A judge's role is defined as upholding the Constitution. Voters, and especially legislatures, do not have their role defined in this way. The political process would not have found segregation laws unconstitutional for countless years without Brown v. Board of Education. Abortion would have remained illegal in most states without Roe v. Wade. Prisoners would rarely have any protection through the political process.

Ultimately, you keep returning to an important point: Why believe that the courts are better than the political process? I argue that voters and legislators often undervalues constitutional protections in favor of other interests. What you have not done is explain why we should believe that the political process would do as good a job at upholding the Constitution as the courts. I think American history powerfully shows that often rights will be protected in the courts or nowhere.

Tushnet: 6/2/05, 02:48 PM
Erwin, maybe I'm using a rhetorical trick in placing the burden of persuasion on you. It's fair enough to observe that the practice of judicial review is well-established, which might place some initial burden on me. I try to discharge that by invoking basic principles of democratic constitutionalism—in which both terms have equal weight.

But I think you're not immune to challenge on rhetorical grounds as well. You repeatedly refer to "facts" that you say show that the constitutional "rights" of (some) minorities aren't adequately "protected" by the political process. But what are the rights of those minorities? What the facts show is that the minorities you identify haven't prevailed in the political process with respect to some things they may care a lot about. What you haven't shown is that they are, in this respect, different from all sorts of other groups that lose in the political process—in some states, supporters of slot-machine gambling, in other states opponents of such gambling.

To use your example, what distinguishes the "rights" of gays in Romer v. Evans from the "rights" of slot-machine operators in states where anti-slot machine referenda have been adopted? I think you'd have to invoke some notion of prejudice, as I suggested before, but I can't figure out—nor, I think, did John Hart Ely—exactly what notion that would be (in a way that distinguished between prejudice against gays and prejudice against slot-machine operators). Certainly, simply saying that the "rights" of gays were undervalued in the Colorado political process won't do.

Or, to return to my original way of putting the point, How do you distinguish between situations in which enfranchised minorities are inadequately protected by the political process from those in which they simply lost out in a fair political contest? What your examples show is that sometimes interests you like lose political battles. So what? Sometimes they win, after all. There are gay rights ordinances in many jurisdictions, and it's hard to say that the interests of women haven't been fairly taken into account in constructing public policy over the past few decades—which is not to say that they win all the time, or that everything someone with your values wants has been accomplished. That, though, is simply to describe politics.

Your point about the effects of role is important, but I think it's inadequate, in two directions. As to judges: I have, but apparently you don't, a concept of "overprotection" of constitutional rights. The judges' role conception, as you describe it, may lead them to overprotect constitutional rights—that is, give interests concededly deserving of special attention too much weight relative to other interests.

And, as to voters: The role of citizen is an honorable one, and in my view ordinary citizens do in fact think about constitutional values when they vote. What "other interest" is involved when a citizen votes for a pro-choice or a pro-life candidate? Sure, voters worry about other things—but maybe that indicates that we properly value constitutional interests in the overall scheme of things, whereas judges, insulated from lots of the things that matter to ordinary people, place too much weight on what they describe as constitutional values as they try to specify precisely what the Constitution means.

A final point: In reading your posts, I can't escape the feeling that, for you, what the Constitution means is in some sense transparent: Everyone knows what a constitutional right is, and when it's violated; it's just that voters are willing to violate constitutional rights and judges less willing to do so. For me, though, what we see pervasively are reasonable disagreements over what the Constitution means and what its protections actually are, in concrete circumstances. The judges' position on those questions is, as I've repeatedly acknowledged, a reasonable one (and one you agree with more often than not, apparently)—but so are voters' and legislators' positions. Given two reasonable positions about what the Constitution means, I think that democratic constitutionalism weighs in favor of the voters' and legislators' position.

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Chemerinsky: 6/3/05, 09:21 AM
My central position is that society is better off having an institution largely insulated from majoritarian politics decide the meaning of the Constitution and enforce it. Contrary to your statement, Mark, I do not believe that the meaning of the Constitution is transparent and that it is clear what rights should be protected. In virtually every case that gets to the Supreme Court, reasonable people can disagree over the meaning of the Constitution. The key question is who should decide: the unelected judiciary or the people through the political process.

Throughout this exchange, I have emphasized that the Constitution is inhernetly an anti-majoritarian document and its interpretation and enforcement should not be left to the majoritarian process. Given your commitment to democracy, I do not understand why you want a Constitution at all. Your criticism of judicial review really seems to be a criticism of the Constitution which limits the choices that the majority can make. Once it is accepted that there should be a Constitution, which limits the majority, then from a process perspective it makes great sense to put its enforcement in the hands of a non-majoritarian institution.

It is important to make this less abstract. Freedom of speech by unpopular groups should not depend on the wishes of the majority. Nor should the majority be able to disenfranchise minorities through devices like poll taxes or by precluding them from using the political process to enact laws. Unpopular groups like prisoners or criminal defendants should not have their rights depend on the wishes of the majority. States should not be able to discriminate against the goods and services of other states. In none of these instances, does it make sense to me to rely on the political process.

In your last posting, you make three major arguments. First, you say, "How do you distinguish between situations in which enfranchised minorities are inadequately protected by the political process from those in which they simply lost out in a fair political contest?" I think that this is a secondary question. The initial question has to be whether there are instances in which groups are not adequately protected in the political process and should have their constitutional rights safeguarded by the courts. I cannot imagine that anyone would disagree that American history shows that such groups have existed and still exist. The next question then is, who should decide which groups need protection and when? It makes no sense to leave it to the majoritarian process to decide who is to be protected from the majoritarian process. The courts are the institution best suited to do this because of their greater political insulation and their role of enforcing the Constitution. Only then is it appropriate to consider how to distinguish what groups need protection from the political process. We can argue over that, but the key is that it is best for the courts and not the political process to decide this.

Second, you argue that judicial review risks "over-protection" of rights. But this contradicts your central position that it cannot be said in the vast majority of cases that there is just disagreement and that there is not any reason to prefer one answer over the other. There cannot be over-protection unless there is a sense of what ideal protection would be. Put another way, you can't have it both ways: you cannot simultaneously say that there are no right answers so leave it to the political process and that there is the risk of wrong answers (i.e., overprotection) with judicial review.

Third, you offer a romantic vision of the political process, writing: "The role of citizen is an honorable one, and in my view ordinary citizens do in fact think about constitutional values when they vote." I agree that the role of the citizen is an honorable one, but I do not believe that the majority is likely to safeguard unpopular speech, protect minority religions, ensure equality for racial minorities and other groups that have been historically disadvantaged, care about the rights of criminal defendants or prisoners.

History shows that for these groups it is often judicial protection or none at all. The elimination of judicial review for these groups is a truly chilling prospect.

Tushnet: 6/3/05, 12:42 PM
I'm afraid, Erwin, that I still don't see how you've moved from grand abstraction—"the rights of unpopular minorities should be protected"—to the real problems of setting up institutions that respond to real-world problems. Nor am I persuaded that my position is one favoring democracy over constitutionalism. As I've said all along, I'm in favor of a democratic constitutionalism. I might just as easily say of your position that it's a defense of governance by elites purporting to enforce constitutional restrictions but actually enforcing the values the elites prefer over the values most ordinary people hold.

All the rhetorical force of your argument, I think, comes from the phrase "unpopular minorities" and variants on it. But, in my view, that cuts the inquiry off before it should begin. People don't want to suppress speech merely because it's unpopular; instead, they have reasons that lie behind their conclusions, and it's those reasons that make the speech unpopular. Sometimes those reasons are good ones, sometimes bad ones, but it doesn't help us in thinking about who should decide whether the reasons are good or bad to utter the words "speech by unpopular minorities." Or, to take an even more obvious point (because I've built widespread enfranchisement into my premises), it doesn't advance the inquiry to say, "the majority shouldn't be able to disfranchise minorities by poll taxes," without explaining why that kind of disfranchisement is bad and the disfranchisement of minors or—more pertinently perhaps—long-term lawfully resident aliens is perfectly fine. And, once we're in the land of reason-giving, I still am waiting for an explanation of why the reasons that judges can find persuasive are somehow unavailable to ordinary citizens.

That brings me to the charge of self-contradiction. My point isn't that judges can "overprotect" rights, which, you say, would be inconsistent with my view that there aren't any rights for judges to protect. Rather, the point is that what's always at stake is figuring out precisely what a constitutional right actually protects in real-world cases. I've agreed with you that judges and ordinary citizens have different incentives and perspectives they bring to that task. Where we disagree is on this: I don't see any reason for thinking that the judges' incentives and perspectives regularly ensure that the resolutions they arrive at are across-the-board, throughout the course of U.S. history and projecting forward, normatively better specifications of the Constitution's abstractions than ordinary citizens' specifications. Sometimes the judges will be "better" (from some point of view), sometimes worse.

The bottom line judgment is going to be a pragmatic evaluation, probably from a partisan/political point of view, of their performance. What I've been trying to do is bring out the inevitably political nature of one's evaluations.

A final word on whether I'm a constitutionalist: Of course I am. The Constitution's broad terms—what I've called the "thin" Constitution—have provided powerful support for political movements throughout U.S. history. For me, though, the job of figuring out what those terms mean in particular situations is a job for citizens, not for judges.

Chemerinsky: 6/3/05, 06:44 PM
It has truly been a pleasure to participate in this exchange with you, Mark. I feel I have a much better understanding of your position as a result of these thoughtful explanations.

Having read over our exchange, I believe that the debate over whether there should be constitutional judicial review comes down to the question of whether without judicial review the political process can be trusted to comply with the Constitution. You would leave choices as to the meaning of the Constitution to the people through their elected representatives. You would abandon a practice, judicial review that has been an integral part of American government for over 200 years. In contrast, I believe that the enforcement and interpretation of the Constitution should continue to be in the hands of the unelected federal judiciary and the Supreme Court.

My main concern about our exchange is that it has been far too abstract and academic. It is important to imagine what the world would be like if our country lived without judicial review as you suggest. Consider a few examples of eliminating judicial review you urge, Mark:
*No court could keep the President and the Executive branch from detaining individuals indefinitely as enemy combatants without due process.
*The courts could not have forced Richard Nixon to turnover the Watergate tapes.
*No court could invalidate a state law that discriminates against goods and services from other states.
*There would be no judicial protection of rights such as the right to marry, to procreate, to custody of one's children, to control the upbringing of one's children, to purchase and use contraceptives, to abortion, to private consensual homosexual activity. No limit would exist on legislatures in these areas.
*States could administer the death penalty however they wanted, including a mandatory death penalty, and the death penalty for the mentally retarded and for crimes committed by juveniles.
*Laws discriminating against racial minorities, against women, against non-citizens, and against gays and lesbians could not be invalidated by the courts,
*School prayer, even mandatory school prayer, would be allowed if legislatures wanted (and many would). Government could put religious symbols on government property at will. No limit would exist on aid to parochial schools.
*There would be no judicial protection of freedom of speech.

These are just a few examples of a world without judicial review. Mark, you make several responses. First, without judicial review, the legislative process would do a better job of protecting rights. But why believe this; why not believe that without judicial review and the possibility of invalidation, the legislative process would do even worse?

Second, there is no reason to prefer the choices of the courts over those of the legislature. You say that where there is a dispute over the meaning of the Constitution it cannot be said that one choice is better than another. But I think he still misses my key point: The issue is when there is a dispute, who should decide the meaning. Should we have choices about the rights of minorities made by the majority or by an institution committed to upholding the Constitution? Moreover, I believe in each of these examples, and countless more, I can defend that the results from the courts would be preferable to that of the political process.

You says, "[I] still am waiting for an explanation of why the reasons that judges can find persuasive are somehow unavailable to ordinary citizens." The reasons, of course, are available to both courts and the public. But courts are more likely to heed those reasons and protect constitutional rights. Their role is defined as enforcing the Constitution; that is not the preeminent role or orientation of the political process. The judicial process is responsive to minorities in a way that the political process never can or will be; courts must hear the claims of a single person, legislatures don't have to. The process of written opinions elaborating constitutional values provides for a development of constitutional law that would be lost with just the political process.

Over 200 years ago, in Marbury v. Madison, Chief Justice John Marshall explained that the limits of the Constitution would be meaningless without judicial enforcement. The entire course of American history confirms this.

I conclude as I began this exchange. As a lawyer who represents unpopular individuals—a challenger to a Ten Commandments display, a condemned man on death row, a prisoner who was raped, a man sentenced to 50 years to life for stealing $153 worth of videotapes—it is chilling to me to think of eliminating judicial review and leaving their protection to the political process. It is easy as an academic matter to proclaim trust in the people, but in the real world, for unpopular minorities it is often the courts or nothing.

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