There's More Than One Kind of Judicial Review

Following up on Mark's post, it's important to recognize that there are many different versions of judicial review. There can be judicial review of Congress, judicial review of the Executive, and judicial review of state and local government action. The most important form of judicial review in a democracy may be judicial review of executive and administrative action. Many countries whose courts lack the power to strike down legislation as unconstitutional have nevertheless developed judicial doctrines limiting what the Executive and bureaucrats can do. The fact that so many countries have developed judicial review of administrative action without a written constitution or with only limited review of legislation suggests that reining in executive discretion and executive overreaching is the most important job of a judiciary in a democracy.

In countries with a federal system, judicial review of conflicts between the national government and the states, or between the states themselves, can also be particularly valuable for the health of a democracy, because it is sometimes necessary to have a national referee for these sorts of conflicts. This may be more important in countries that are barely holding together than it is for the contemporary United States, but it is also possible that the presence of judicial review of federal state conflicts may have helped stabilize the American federal system given the repeated disruptions of economics and demographic shifts. Moreover, this sort of review does not always require striking down laws; it may involve judicial construction of legislation to harmonize apparent conflicts.

The least important form of judicial review is probably the one that people spend the most time worrying about: judicial review of individual rights violations by the national government and by states and local governments. As between the two, the latter violations by states and localities are more important to police than the former, because multiplying the number of state and local governments multiplies the number of opportunities for violating individual rights. On the other hand, one way to keep a federal union together is to let different localities enforce individual rights guarantees in different ways. Since the Civil War the American constitutional system has settled on the idea of a uniform floor for civil rights protection set at the national level, but that's clearly not the only way to do it.

I should point out that nothing I have said in these remarks is premised on what would be good or bad for the left or the right. Indeed, I have come to the conclusion that this is not a helpful inquiry. That is because judicial review, like federalism and separation of powers, is a structural feature of constitutions. It is characteristic of structural features that they alternatively please and annoy different factions at different points in history, and that because their purpose is not the enhancement or furtherance of a particular political program or ideology (narrowly conceived), but rather the promotion of a stable democracy that forces political compromise as an ongoing project. Some structural provisions do this better than others, and some are complete failures, with all sorts of bad effects, but that judgment should not be confused with whether a particular structural provision is good or bad for the left or for the right. My study of the constitutional claims of political ideologies in the United States has led me to conclude that whatever the left (or the right) wants in terms of constitutional structure at a particular moment in history, there is a good chance that it will want the opposite some years later. We can always ask what is good for the left or the right at this present moment in politics, but there is no guarantee that our perspective will be the same even five years hence. So it may be more useful to ask different questions about constitutional design.