Critical Legal Studies Movement

Wash. UJL & Pol'y, 2009

The American Journal of Jurisprudence, 1985

Calif. L. Rev. Circuit, 2010

2007

Social Science Research Network, 2006

The Cambridge Law Journal, 2007

Abstract: In this paper I provide a defence of legal constitutionalism, and in particular its often-attendant practice of judicial review, against what I understand to be its two strongest critiques. First, Richard Bellamy’s radical, republican-grounded criticism in Political Constitutionalism, in which he argues that judicial review “strips the people of their most basic ‘constitutional’ right: the power to address afresh any issue and to decide together, as equals, how to handle it,” adding that “[b]y denying people this power and by empowering, instead, a group of judges who are not accountable to the people, legal constitutions set up regimes of domination in which almost everyone is subject to the arbitrary rule of others.” Second, I hope to defend against the more moderate, liberal criticisms made by Jeremy Waldron in Law and Disagreement and The Core of the Case Against Judicial Review, among other places. I make my defence not on the “uneasy” grounds of Richard Fallon, fearing that strong judicial review represents a compromise in democratic values, nor on the largely stipulative grounds of Samuel Freeman and various other contractarians. My defence, rather, is made on what I have called in my subtitle political constitutionalist grounds, by which I mean simply that it is made first, while accepting the relevance to the argument of freedom understood as non-domination; second, while accepting the Jeffersonian stress on the pre-eminence of present legislative bodies (that is, whilst concerned with the prima facie democratic illegitimacy of the ‘dead hand of the past’); and third, while accepting that collective decision-making procedures should be valenced toward bare majoritarianism (50%+1) and that deviations from this procedure require substantial justification. [Undergraduate Paper]

2013