Document Type

Article

Publication Date

6-2015

Publication Source

Perspectives on Politics

Abstract

Many democratic and jurisprudential theorists have too often uncritically accepted Alexander Bickel’s notion of “the countermajoritarian difficulty” when considering the relationship between judicial review and democracy; this is the case for arguments both for and against judicial review. This framework is both theoretically and empirically unsustainable. Democracy is not wholly synonymous with majoritarianism, and judicial review is not inherently countermajoritarian in the first place.

In modern democratic political systems, judicial review is one of many potential veto points. Since all modern democratic political systems contain veto points, the relevant and unexplored question is what qualities might make a veto point relatively democratic. Proceeding on the assumption that democracy’s primary normative value is found in its opposition to domination by both state and private actors, we make a preliminary effort to delineate what qualities a democratic veto point might have, identifying five criteria, and evaluate judicial review using these criteria.

We conclude that judicial review’s performance against these criteria is decidedly mixed, but in the final balance, it is likely to be a modest net positive for democracy, particularly when compared to other veto points commonly found in contemporary democratic political systems.

Inclusive pages

312-326

ISBN/ISSN

1537-5927

Document Version

Postprint

Comments

The document available for download is the authors' accepted manuscript, archived in compliance with the publisher's policy on self-archiving. Some differences may exist between the manuscript and the published version; as such, those wishing to quote directly from this source are advised to consult the version of record, available from the publisher.

Permission documentation is on file.

Publisher

Cambridge University Press

Volume

13

Issue

2

Peer Reviewed

yes

Keywords

democratic theory, judicial review, veto points, non-domination