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Christopher F. Zurn, Deliberative Democracy and the Institutions of Judicial Review.

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Christopher F. Zurn, Deliberative Democracy and the Institutions of Judicial Review (New York: Cambridge University Press, 2007), viii + 366pp.

The relation between democracy and constitutionalism has long dominated debates in legal and political theory. The ideals of self-government, for example, inform great works in political thought like Jean-Jacques Rousseau's The Social Contract (1762). For political power to be legitimate, democrats demand that it respect people as political equals. Rousseau expresses this ideal of self-government in his dictum that the general will must "come from all and apply to all." Liberal champions of constitutionalism, however, often emphasize the potential dangers of majoritarianism--in particular, the threat it poses to the sanctity of individual rights. So the idea of treating persons as free and equal moral agents leads some theorists to endorse the position taken by libertarians like Robert Nozick (1)--that individuals are inviolable. Fuelled by concerns about the inadequacies of democratic and utilitarian theories, "rights-based" theories of justice grant priority to respecting what John Rawls calls the "separateness of persons." Rather than equating legitimacy with self-government, liberals and libertarians believe that legitimacy actually requires constraining democracy. This then leads them to the institutional prescription that judicial review must preside over the will of the demos, at least when matters of "constitutional essentials" are at stake. The members of the Supreme Court, unlike elected and accountable legislators who must be concerned about re-election, are thus considered to be the "exemplar" of public reason. (2)

In Deliberative Democracy and the Institutions of Judicial Review, Christopher Zurn considers these theoretical and philosophical debates. Is judicial review democratic or undemocratic? Should unaccountable judges be able to invalidate the laws and decisions made through democratic political processes? In order to answer these questions we must consider if the notion of a constitutional democracy is itself a coherent, attractive and feasible...

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