Judicial Review and Democracy

 

This debate about whether judicial review is compatible with democracy is meant to get students thinking about what sort of ideal democracy is, and to see both its procedural and substantive components.

Prior to class, students had read Dworkin (1997), pp. 1-35; and Waldron (1998).  When the students arrived in section, the instructor split them into two groups, assigning one group to argue in favor of the proposition that judicial review promotes democracy (drawing on Dworkin) and one group to argue against it (drawing on Waldron).  Each group had 5-10 minutes to confer and draw up a list of arguments.  Then, each group was given about 5 minutes to make an opening statement.  After the opening statements, the instructor allowed discussion to develop more or less organically, with students from each side questioning or attempting to rebut their opponents' arguments.  Occasionally the instructor intervened to help focus discussion and to clarify the positions defended by Dworkin and Waldron in the readings.  In the last 5 minutes of section, the instructor synthesized take-away points -- including the point that democracy as an ideal includes both procedural and substantive aspects, and the point that defenses of judicial review (incl. Dworkin's) often depend on empirical claims about the judiciary's superiority, relative to majorities, with respect to ensuring equal basic rights and the "conditions of democracy" for all citizens.  In the last part of section, the instructor polled the students to see where they now stood on the question of judicial review's relationship to democracy.

Readings:

Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996), pp. 1-35

Jeremy Waldron, “Judicial Review and the Conditions of Democracy,”Journal of Political Philosophy 6:4 (1998), pp. 335-355