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18 Ga. L. Rev. 469 (1983-1984)
In the Interest of the Governed: A Utilitarian Justification for Substantive Judicial Review

handle is hein.journals/geolr18 and id is 481 raw text is: IN THE INTEREST OF THE GOVERNED: A UTILITARIAN JUSTIFICATION FOR SUBSTANTIVE JUDICIAL REVIEW Robin L. West* I. INTRODUCTION Substantive judicial review of majoritarian decisionmaking is widely perceived as being inconsistent with utilitarian theories of government.1 Utilitarian commentators such as Judge Robert Bork and John Ely denounce substantive judicial review,2 while rights theorists such as Ronald Dworkin and Paul Brest cite its legiti- macy as evidence of the moral inadequacy of utilitarianism.3 The explicit understanding of these commentators, and the implicit as- sumption of many others, is that a utilitarian justification for gov- ernmental power requires an exclusively majoritarian form of deci- sionmaking and thereby precludes substantive judicial review. Utilitarianism as a theory for justifying governmental authority, however, does not dictate what political form that authority must take. The precept that legislators should maximize the commu- nity's happiness does not imply that a legislating majority will be infallible when trying to do so; nor does the precept imply the weaker claim that a majority is the political entity best entrusted with the community's fate. A perfectly representative governing majority, as well as an aristocracy or a dictatorship, can be corrupt and selfish, preferring its own interest to that of the community. * Assistant Professor of Law, Cleveland Marshall College of Law. University of Maryland, B.A., 1976; J.D., 1979; Stanford Law School, J.S.M., 1982. I would like to thank Professor Tom Grey of Stanford Law School and Professors James Wilson and Joel Finer of Cleveland Marshall College of Law for their helpful comments and criticism on early drafts of this Article. Research was supported by a Cleveland Marshall Development Fund grant. 1 See, e.g., J. ELY, DEMocRAcY AmD DmTRus. A THnEORY OF JUDICL. Rsvw (1980); Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 10-11 (1971); Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 YALE L.J. 1063, 1102-04 (1981); Ely, Constitutional Inter- pretivism: Its Allure and Impossibility, 53 IND. L.J. 399, 404-06 (1978). 2 See J. ELY, supra note 1, at 43-72; Bork, supra note 1. 3 See R. DwoarN, TAxING RIGHTS SERIousLY 231-38 (1977); Brest, supra note 1. 469

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