Democracy Versus Judicial Review

Is It Time to Amend the Constitution?

Before the 2004 election, one of George W. Bush’s advisers produced a memorable description of liberals as the “reality-based community.” Liberals took to wearing the label, offered as a criticism, as a badge of honor.

In one important respect, however, the liberal community is about as faith-based as one can get. Liberals believe in the courts as vehicles for progressive social change-a belief that remains unshaken by the Supreme Court’s two-century history and the fact that it has been at best an inconstant defender of progressive values since the 1980s. Liberals were unbelievers for the first half of the twentieth century and then got religion during the short period when liberals dominated the Court. The Supreme Court and judicial review are false gods, and liberals should return to their unbelief.

Suppose that liberals offered a constitutional amendment along these lines: “Except as authorized by Congress, no court of the United States or of any individual state shall have the power to review the constitutionality of statutes enacted by Congress or by state legislatures.” Let’s call it the End Judicial Review Amendment (EJRA).

I offer this formulation in part simply to focus the discussion, but also as a serious proposal. Progressives and liberals should abandon courts as a principal resource, for reasons of democratic principle and political strategy.

Principle

The basic principle, of course, is that people ought to be able to govern themselves. Judicial review stands in the way of self-government. Constitutionalism- the imposition on the people of restrictions on their own power-does not. The reason is that constitutionalism can be implemented through politics as people listen to arguments about why some policies they might initially prefer are inconsistent with deeper values they hold, values that find expression in the Constitution. As Larry Kramer, dean of Stanford Law School, argues in his recent book The People Themselves, the United States has a deep tradition of popular constitutionalism. He suggests it should be retrieved today, and he is right.

This basic democratic principle is supplemented by the basic facts about the U.S. Constitution. It protects fundamental values that it identifies in general terms: “due process of law,” “equal protection of the laws,” “freedom of speech.” These terms are hardly self-defining, and there is inevitable reasonable disagreement over what they mean when applied in particular controversies: are hate-speech regulations a violation of freedom of speech or not? The “answer” is that the U.S. Supreme Court says they are. The Canadian Supreme Court, in contrast, says they are not.

Reasonable disagreement about the proper interpretation of the Constitution is usually what informs a Court decision that a statute is unconstitutional. As legal phi...