On Judicial Review

The Spring 2005 issue of Dissent featured a forceful article by Mark Tushnet, “Democracy versus Judicial Review,” which proposed an End Judicial Review Amendment (EJRA) to the U.S. Constitution. It would read, “Except as authorized by Congress, no court of the United States or any individual state shall have the power to review the constitutionality of statues enacted by Congress or by state legislatures.” Two leading legal philosophers argue with Tushnet and he replies. -EDS.

Laurence H. Tribe

When prominent left-leaning scholars enlist in the right wing’s longstanding war on the independent judiciary’s enforcement of the Constitution, something suspicious is afoot. Is it the left’s sensitivity to accusations of elitism? But proclaiming our willingness, in Mark Tushnet’s words, to let “the people” decide whether our clients’ rights have been violated—the better to “show that we liberals and progressives really do think that our arguments can ultimately prevail in politics”—is dangerous sport. It treats the rights of others as though they were ours to expend in bolstering our credibility, and it overlooks the brute fact that “good arguments” in politics aren’t guaranteed the time of day if they fail to coincide with people’s interests.

Sounding out just as the courts, already conservative, appear ready to take a turn still further to the right, the clarion call to “take the Constitution away from the Court” strikes a defensive note—one nicely suiting the tune of right-wing critics of the federal bench.

Compounding the irony, the right’s indictment against justices appointed by presidents Richard Nixon, Ronald Reagan, and the first George Bush is capped by the complaint that they dare search the World Wide Web and even at times cite the work of foreign courts! How strange to castigate our judges for paying attention to the wider world at the very point in world history when nation after nation, having pondered the American experience and studied the alternatives, comes to the sober conclusion that judges protected from political reprisal for unpopular rulings and charged with enforcing the nation’s fundamental law are indispensable to the healthy functioning of a constitutional democracy.

Accepting that conclusion requires no more “distrust of politics and of the people,” in Tushnet’s words, than “We, the People” had when we ratified the words “We . . . do ordain and establish this Constitution for the United States of America.” To live by a written constitution is already to recognize that, although the people are to govern themselves (facilitated by a framework that itself at times demands judicial maintenance and even repair), they must do so subject to commitments that attempt to protect basic human rights. These include the rights of distinct minorities that might otherwise be too easily dismissed or subordinated to the p...