Legal Commentary

Is Eric saying that even if he thinks that the Constitution forbids X, that he doesn't want the judiciary to strike down X? Or is he saying that he thinks X is not unconstitutional? Perhaps this is what he means by his comment that "A strong case has been made that American Supreme Court justices have gone too far in evaluating and striking down laws on the basis of their constitutionality." Is he saying that the Justices have been striking down too many unconstitutional laws, or is he saying that they have been striking down laws they think are unconstitutional but that Eric thinks are really not unconstitutional? If the latter, then he is not making a generalized argument for judicial restraint; he is making an implicit claim about the substantive rights the Constitution protects.) Or perhaps is he making one of the other types of arguments for judicial restraint I mentioned in my previous post. If so, which one?

I'm also puzzled by his offhand claim "that most advanced liberal democracies have much less of this behavior." What behavior, precisely, is that? Striking down unconstitutional laws and executive actions? Or striking down laws and executive actions that aren't really unconstitutional?

Eric's assumption strikes me as unproven. We must make sure that we are not comparing apples and oranges. In those systems that have judicial review (as opposed to no judicial review at all) the U.S. is not particularly an outlier. And there are further complications. What of my point about the difference between judicial review of executive action and judicial review of legislative action? What about the further distinction between the case for judicial review in a federated republic like the U.S. as opposed to a unitary republic? What about systems that have abstract review (like France) as opposed to those like the U.S. that have case or controversy requirements? And what about those that have specialized central constitutional courts as opposed to those that hear constitutional claims in courts of general jurisdiction? We can't make offhanded claims about the U.S. having "more" judicial review (or more "unnecessary or bad" judicial review) than other liberal Western democracies until we start thinking more carefully about the effects of constitutional design on judicial practice.

Inquiring minds want to know, Eric. What is your theory of judicial restraint in a system of judicial review?

Full post as published by Balkinization on March 26, 2008 (boomark / email).