Federalism and Judicial Review

First of all, apologies for my silence in the last 10 days. I have a partial excuse in that I gave a guest-lecture in Fabien Gélinas’ constitutional law class at McGill last Thursday, about the Rule of Law and the legitimacy of the judges’ law-creating activity, which of course had me freaking-out to prepare. But it went well―the students, with just a month of law school under their belts, deserve a lot of credit for understanding the material which was quite difficult―and I have no excuses any more, and I plan to resume a more normal blogging pace now.

There’s no shortage of material either, but I start off with more shameless self-promotion. I just posted a new draft paper, “Federalism and Democracy: A Defence of Federalism-Based Judicial Review“, on SSRN.  It is a response to critiques of judicial enforcement of constitutional divisions of power between federations and sub-federal units, such as ss. 91/92 of the Constitution Act, 1867. Although such criticism is seldom heard in Canada, it is common enough, at least in the legal academia, in the United States, and it is also an implication, albeit an unexplored one, of the general critiques of judicial review, such as that of Jeremy Waldron.

Here is the abstract:

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.

I will present it at the Third Annual Constitutional Law Colloquium at the Loyola University of Chicago School of Law in early November, and then revising it before, I hope submitting it for publication. So comments are more than welcome.

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