Wednesday, June 08, 2005

The Role of Judicial Review--Legal Affairs Debate Club

Interesting debate here on the role of judicial review (thanks to Professor Bainbridge) between Professors Tushnet and Chemerinsky, with the latter arguing that it's not needed. According to Tushnet:
"The core of your position seems to be that if there is disagreement over the meaning of the Constitution, there is no reason to prefer having the court make the choice rather than the political process. My view, in contrast, is that society is better off having an institution largely insulated from majoritarian politics determine the meaning of the Constitution and enforce it.
In the argument I'm struck by the absence of a sense of history, which puts me more on Tushnet's side (pro judicial review). Over time, sober reflection will result in different positions than the push and pull of policy-making by elected politicians. And the country will often be better off. In democracies, politicians respond to the passions of the moment and act. Or flotsam rides the tidal wave up onto the beach. The passion cools, the tide ebbs, but democracy will not clean the beach of the flotsam.

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