Federalism and Judicial Review

A paper of mine has been chosen for a presentation at the Third Annual Constitutional Law Colloquium at the Loyola University Chicago School of Law. It is about the legitimacy of judicial review of legislation on federalism grounds – that is, courts striking down legislation because it infringes not individual rights, but the division of powers between a federal and a local (provincial or state) government. While in Canada the principle has mostly been uncontroversial (even though some instances of its application were not), it is regularly criticized in the United States, and I am sure that the criticism – at least from the academia and probably some judges too – will redouble if the Supreme Court strikes down President Obama’s healthcare reform legislation. And more general criticisms of judicial review of legislation, such as that articulated most forcefully by Jeremy Waldron in his article on The Core of the Case against Judicial Review, are also applicable to judicial review on federalism grounds. I argue that this criticism is misguided, and that federalism-based judicial review is valuable.

Here is a short abstract of my paper:

Not only critics of judicial review of legislation, but sometimes even those who support its use to protect the rights of individuals or minorities are critical of judicial review on federalism grounds. I want to argue that they are mistaken. When it is used to protect a federal division of powers, judicial review of legislation is not only counter-majoritarian, but also pro-majoritarian.

In a federation, democracy happens at more than one level, a democratic federal legislature and democratic state legislatures. Thus, insisting that issues of federalism must be resolved democratically obscures the fact that, in a federation, there are different decision-makers with different constituencies and democratic claims of equal strength. To allow one of these decision-makers to impose its understanding of federalism on the other is no less undemocratic than to subject it to judicial review.

“Political safeguards of federalism” cannot resolve this problem, because they are either ineffective at giving states a voice in federal legislation or, if effective, they allow states to override the views of the national majority. Judicial review is the best practical solution for settling disputes about federalism. From a democratic standpoint, it is not a mere loss, but an important investment.

If you want to read the whole thing, please let me know. I’d be happy to share it and to get some comments before I present it formally. (That’ll be in November, so there’s plenty of time yet.)

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Apologies for a rather lazy post today. Blogging will probably be light in the coming days.

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