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Questions and Answers
A multicameral legislative process involves multiple levels of review.
A multicameral legislative process involves multiple levels of review.
True (A)
Having an unelected body review legislation is similar to the concept of judicial review.
Having an unelected body review legislation is similar to the concept of judicial review.
True (A)
A posteriori judicial review refers to the review of a law after it has been put into practice.
A posteriori judicial review refers to the review of a law after it has been put into practice.
True (A)
Judicial review can only be exercised by specialized constitutional courts.
Judicial review can only be exercised by specialized constitutional courts.
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Judges in ordinary courts are better equipped to reason about rights than judges in specialized constitutional courts.
Judges in ordinary courts are better equipped to reason about rights than judges in specialized constitutional courts.
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Specialized constitutional courts are free from the influence of doctrine and precedent.
Specialized constitutional courts are free from the influence of doctrine and precedent.
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The author is arguing against the use of judicial review in any context.
The author is arguing against the use of judicial review in any context.
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The author believes judicial review is acceptable for dealing with specific legal problems.
The author believes judicial review is acceptable for dealing with specific legal problems.
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Courts in the US strike down statutes for violations of individual rights in a fundamentally different spirit than when striking down statutes for violations of federalism or separation of powers principles.
Courts in the US strike down statutes for violations of individual rights in a fundamentally different spirit than when striking down statutes for violations of federalism or separation of powers principles.
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Philosophical defenses of judicial review are often framed in terms of the protection of majority tyranny.
Philosophical defenses of judicial review are often framed in terms of the protection of majority tyranny.
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According to Jeffrey Goldsworthy, the 'notwithstanding' provision provides a sufficient answer to those who worry about strong judicial review on democratic grounds.
According to Jeffrey Goldsworthy, the 'notwithstanding' provision provides a sufficient answer to those who worry about strong judicial review on democratic grounds.
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Goldsworthy believes that the rare use of the 'notwithstanding' provision is an issue because it undermines democratic principles.
Goldsworthy believes that the rare use of the 'notwithstanding' provision is an issue because it undermines democratic principles.
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The text posits that legislators consistently believe that Charter rights are unimportant.
The text posits that legislators consistently believe that Charter rights are unimportant.
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Section 33 of the Charter requires the legislature to misrepresent its position on rights.
Section 33 of the Charter requires the legislature to misrepresent its position on rights.
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The characteristic stand-off between courts and legislatures involves one group who does not think certain rights are important and another group who does.
The characteristic stand-off between courts and legislatures involves one group who does not think certain rights are important and another group who does.
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A legislature can ensure its view on Charter provisions will prevail without appearing to override the Charter itself, if the judiciary agrees with them on the meaning of the charter.
A legislature can ensure its view on Charter provisions will prevail without appearing to override the Charter itself, if the judiciary agrees with them on the meaning of the charter.
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The author believes that individuals must agree on a decision-procedure before disagreements can be settled.
The author believes that individuals must agree on a decision-procedure before disagreements can be settled.
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The author uses the word "legitimate" in the same way Hobbes uses the word "sovereign" in Leviathan.
The author uses the word "legitimate" in the same way Hobbes uses the word "sovereign" in Leviathan.
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The author suggests that disagreements about decision-procedures are more difficult to resolve than disagreements about outcomes.
The author suggests that disagreements about decision-procedures are more difficult to resolve than disagreements about outcomes.
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The author argues that we should simply agree on the substance of an issue and avoid the difficulty of finding a legitimate decision procedure.
The author argues that we should simply agree on the substance of an issue and avoid the difficulty of finding a legitimate decision procedure.
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The author believes that reaching an agreement on the substance of an issue will naturally lead to agreement on a legitimate decision-procedure.
The author believes that reaching an agreement on the substance of an issue will naturally lead to agreement on a legitimate decision-procedure.
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According to the author, a normative political theory should only address the substance of issues and not the legitimacy of decision-procedures.
According to the author, a normative political theory should only address the substance of issues and not the legitimacy of decision-procedures.
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The author uses the idea of a "regress of procedures" to suggest that the process of finding a legitimate decision-procedure is inherently circular.
The author uses the idea of a "regress of procedures" to suggest that the process of finding a legitimate decision-procedure is inherently circular.
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The author argues that in the face of widespread disagreement, it is acceptable to simply bypass the question of decision-procedure legitimacy and focus on the substantive outcome.
The author argues that in the face of widespread disagreement, it is acceptable to simply bypass the question of decision-procedure legitimacy and focus on the substantive outcome.
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Disagreements about rights are solely due to issues of narrow legal interpretation.
Disagreements about rights are solely due to issues of narrow legal interpretation.
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The inclusion of socioeconomic rights in the Bill of Rights is a matter of philosophical debate.
The inclusion of socioeconomic rights in the Bill of Rights is a matter of philosophical debate.
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The term 'watershed' issues refers to major political choices that provoke significant disagreement.
The term 'watershed' issues refers to major political choices that provoke significant disagreement.
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Central applications of rights are always non-controversial, while only marginal applications lead to disputes.
Central applications of rights are always non-controversial, while only marginal applications lead to disputes.
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Issues like abortion and affirmative action are considered peripheral in debates about rights.
Issues like abortion and affirmative action are considered peripheral in debates about rights.
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The legitimacy of government redistribution is a topic that faces major choices in modern society.
The legitimacy of government redistribution is a topic that faces major choices in modern society.
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The precise meaning of religious toleration is rarely a subject of disagreement in society.
The precise meaning of religious toleration is rarely a subject of disagreement in society.
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Commitment to rights can coexist with ongoing controversies in particular cases.
Commitment to rights can coexist with ongoing controversies in particular cases.
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Outcome-related reasons are the only considerations in decision-making about rights.
Outcome-related reasons are the only considerations in decision-making about rights.
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Consequences avoided by decision procedures are solely deontological in nature.
Consequences avoided by decision procedures are solely deontological in nature.
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Process-related reasons can also have a deontological urgency.
Process-related reasons can also have a deontological urgency.
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Ronald Dworkin emphasizes that participatory reasons are merely a matter of their good consequences.
Ronald Dworkin emphasizes that participatory reasons are merely a matter of their good consequences.
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Rights-based responsibilities do not involve duties to prevent outcome-related violations.
Rights-based responsibilities do not involve duties to prevent outcome-related violations.
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The term 'outcome-related' primarily indicates a focus on deontological considerations.
The term 'outcome-related' primarily indicates a focus on deontological considerations.
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Participatory reasons confirm citizens' equal membership in the community.
Participatory reasons confirm citizens' equal membership in the community.
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The avoidance of consequences in decision-making is unrelated to the normative character of reasons.
The avoidance of consequences in decision-making is unrelated to the normative character of reasons.
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Judicial neglect of rights in the United States is exemplified by cases such as Korematsu and Dred Scott.
Judicial neglect of rights in the United States is exemplified by cases such as Korematsu and Dred Scott.
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Sectarian interests within legislatures are unlikely to influence their judgment about rights.
Sectarian interests within legislatures are unlikely to influence their judgment about rights.
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Raz argues that those whose interests are not affected by a decision may be honest in their judgments.
Raz argues that those whose interests are not affected by a decision may be honest in their judgments.
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The author believes that judicial review is consistently reliable during times of crisis.
The author believes that judicial review is consistently reliable during times of crisis.
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There are reasons to argue that judges sympathetic to minority rights could resist popular prejudice better than legislators.
There are reasons to argue that judges sympathetic to minority rights could resist popular prejudice better than legislators.
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Indifference to rights is suggested to be typical among members of all societies.
Indifference to rights is suggested to be typical among members of all societies.
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A procedure that isolates decision-makers from bias is preferred in legislative contexts.
A procedure that isolates decision-makers from bias is preferred in legislative contexts.
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Schenck v. United States is commonly referenced in arguments regarding judicial review.
Schenck v. United States is commonly referenced in arguments regarding judicial review.
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Study Notes
Abstract
- This essay presents a general argument against judicial review of legislation.
- It criticizes judicial review on two main grounds: lack of evidence that rights are better protected by judicial review than by democratic legislatures, and its democratic illegitimacy.
- This argument is contingent on the existence of good working democratic institutions and citizens who take rights seriously.
- The essay concludes by considering what happens when those conditions are absent.
Author
- University Professor in the School of Law, Columbia University.
- Professor of Law, New York University.
- Presented earlier versions of this essay in various academic forums.
- Acknowledges the contributions of many scholars and legal thinkers for comments and criticisms.
Essay Contents
- Introduction
- Definition of Judicial Review
- Four Assumptions
- Democratic Institutions
- Judicial Institutions
- A Commitment to Rights
- Disagreement About Rights
- The Form of the Argument
- Outcome-Related Reasons
- Orientation to Particular Cases
- Orientation to the Text of a Bill of Rights
- Stating Reasons
- Process-Related Reasons
- The Tyranny of the Majority
- Non-Core Cases
- Conclusion
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