On Judicial Review: Laurence H. Tribe, Jeremy Waldron, and Mark Tushnet Debate: Replies
Tushnet, Mark
JEREMY WALDRON'S thoughtful response raises important questions about the precise way in which we might begin to wean ourselves from dependence on judicial review to solve our disagreements over...
...The override has rarely been exercised, which might only show that, on reflection, Canada's legislatures agree with the courts' constitutional interpretations...
...Would it work, though...
...Tribe suggests that we need strong judicial review to address the problems that arise when minorities are systematically disadvantaged in politics...
...Canada's Charter of Rights contains a clause that allows its legislatures to make laws effective "notwithstanding" certain rights-guarantees in the Charter, with a five-year sunset period...
...The form of that investment is his depiction of ordinary politics as consumed by "interests" rather than rights and as at least occasionally succumbing to mob rule rather than as deliberation over fundamental values...
...My proposal leaves that question to be resolved not by law but by politics, and I agree that this may not be entirely satisfactory...
...Once those minorities have the right to vote, though, many of the disadvantages disappear...
...Judges in weak-form systems participate in a dialogue with legislatures over fundamental values, but the positions the judges take do not automatically prevail...
...Weak-form judicial review is an interesting modern development in institutional design...
...Norton, 2005) and is the editor of The Constitution in Wartime: Beyond Alarmism and Complacency (Duke University Press, 2005...
...Yet, it is on exactly those issues that courts are mostly silent...
...But, Tribe asks, suppose the president takes the position—as the present administration once did, until its position was exposed to public view—that the Constitution authorizes the president to act even in the face of an express congressional prohibition...
...Weak judicial review may not be a stable institution...
...Yet, one of the most prominent early defenders of the override—who, like Waldron, emphasized the contributions courts could make to a productive dialogue about fundamental values—now argues that Canada's constitutionalism has reached the point where the notwithstanding clause should be replaced by strong judicial review...
...The trick, then, is in designing a form of judicial review that preserves the possibility for democratic resolution of disagreement, while being informed by what judges can contribute...
...Strong judicial review has not cured the disease of interest-driven politics, and it is not at all clear that the matters on which the courts have been most aggressive involve such politics rather than a politics driven by real differences about what our basic constitutional commitments are...
...Experiences in nations with weak-form systems are not entirely encouraging...
...Perhaps that is true on issues of economics and public expenditure...
...Still, moving from what we now have to a weak-form system would help allay the concerns about principle and strategy that I discussed...
...I should observe that Tribe has indeed identified one real problem with my proposal...
...I think that the nation continues to be inadequately responsive to questions of race and poverty, but the courts no less than legislatures are implicated in that failure...
...The enfranchisement of African Americans in the South after the adoption of the Voting Rights Act of 1965, coupled with the political strength of African Americans in the urban North, has made politics at least as effective in promoting African American interests as the courts now are...
...Congress could create a weak-form system under my proposed EJRA...
...I agree with Waldron's suggestion that this is not a fair account of politics—or at least of the politics surrounding questions of fundamental values...
...86 n DISSENT / Summer 2005...
...JEREMY WALDRON'S thoughtful response raises important questions about the precise way in which we might begin to wean ourselves from dependence on judicial review to solve our disagreements over fundamental questions...
...If it worked as it should it might well alleviate the principled concerns democrats should have about strong judicial review...
...Only then might we be able to engage our co-citizens in the kind of productive dialogue about fundamental rights that Waldron, Tribe, and I agree is truly important...
...The rhetoric of "interests" trades on a suspicion that pork-barrel politics too often prevails...
...DISSENT / Summer 2005 n 85 ARGUMENTS Laurence Tribe's contributions to progressive constitutional adjudication, as a scholar and a litigator, cannot be underestimated...
...Still, I suspect that this precise problem will rarely arise (it hasn't yet, even in the torture controversy), and I doubt that it makes sense to erect an elaborate institutional structure such as strong judicial review to deal with an important but, I think, unusual problem...
...In the end, Tribe's rhetoric of "interests" and "mob rule" confirms for me the accuracy of my assessment of the way in which both principle and strategy point to the need for progressives to abandon their attachment to strong judicial review...
...It is simply implausible to contend that the positions conservatives take on abortion or gay rights—or their position in the Terri Schiavo case—are driven by "interests" in any interesting sense...
...Similarly, New Zealand's Bill of Rights, which simply says that courts should construe statutes to conform to constitutional guarantees if they can, may have become the basis for strong judicial review...
...MARK TUSHNET, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center, is the author of A Court Divided: The Rehnquist Court and the Future of Constitutional Law (WW...
...He and Laurence Tribe both point out that courts can contribute to the exploration of those questions...
...I argue that courts can invalidate executive actions raising questions about fundamental values, unless those actions are expressly authorized by Congress...
...Waldron suggests that "weak" judicial review might do the job...
...Yet, as Waldron's comments suggest, Tribe may have become so invested in the institution of judicial review that he overlooks the forest for the trees...
Vol. 52 • July 2005 • No. 3
