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Mark Tushnet, Against Judicial Review (Harv. Law Sch. Pub. L. & Legal Theory Res. Paper Series, Working Paper No. 09-20, 2009).

Abstract: This essay, prepared for a conference, "Is the Constitution Obsolete?," to be held at Baruch College, City University of New York, and to be paired with an essay favoring judicial review, outlines the case against judicial review, which, it argues, contains a positive and a negative component. The positive component is this: As a general matter democracy requires almost definitionally that a polity's citizens be allowed to select their polity's policies (including policies respecting rights) either directly, as in referenda, or through mechanisms of representation that give them indirect but relatively proximate control over policy choice and that allow the people to substitute one policy for another without extraordinary political effort. Embedded in that sentence are a number of important qualifications, but one that is missing is something that reconciles democracy with constitutionalism understood as a set of political arrangements that ensures political stability by limiting the people's ability to alter some policy choices - those understood within the polity as basic - too easily. The negative component is simultaneously simpler to state and more difficult to establish. Proponents of judicial review agree that it should not be justified on the basis of arguments that would authorize courts to displace policy choice across the entire range of policy, and yet they have been unable to devise justifications that satisfy that criterion. The difficulty with the negative component is that the opponent of judicial review can work through existing justifications to show that they do not satisfy the "no universal scope" criterion but cannot eliminate the possibility that some new theory - with Ptolemaic epicycles added to existing theories, for example - might do so. The essay concludes with some observations on the implication of the fact that citizens in democracies around the world appear to accept judicial review, which raises questions for the democrat skeptic about judicial review.