50 S. Cal. L. Rev. 1099 (1977-1978)
Judicial Review in Democratic Theory

handle is hein.journals/scal50 and id is 1113 raw text is: JUDICIAL REVIEW IN
DEMOCRATIC THEORY
WILLIAM R. BISHIN*
Judicial review-the practice of passing upon the constitutionality of legis-
lative, executive, and other governmental action-is as widely accepted
today as it has ever been.1 The theoretical justification of the practice,
however, continues to be troublesome and elusive. [T]he procedure of
judicial review, one commentator recently found it important to insist, is
in conflict with the fundamental principle of democracy-majority rule
under conditions of political freedom.' 2 Whatever the possible usefulness
of the institution, another had said before him, it still is not democratic.3
It is, one of the most influential works of contemporary constitutional
commentary intoned, a deviant institution in the American democracy.4
For such commentators the problem of defining the proper function of
the courts in constitutional cases must begin with the stark fact that judicial
review is an undemocratic element in an otherwise democratic system. Such
an approach is, of course, likely to suggest certain kinds of theoretical
conclusions and to exclude others. For some who adopt it, the conclusion
may follow that judicial review ought to be abolished-either by voluntary
judicial surrender of the power or by constitutional amendment.5 Others
may conclude that the exercise of judicial review ought to be strictly
limited-that, for example, only the most compelling and indisputable
instances of unconstitutional action should be resisted.6 Still others may
respond with an attitude and a feeling, rather than an articulated theory of
judicial function. They may favor an active, interventionist judiciary as a
necessary evil. But they may also feel defensive and guilty, because their
* Professor of Law, University of Southern California. A.B., Columbia University;
LL.B., Harvard University.
1. The term judicial review has a number of meanings in the law. In constitutional
law, its technical meaning is the judicial practice of passing upon the constitutionality of
legislation. The expanded sense suggested in the text is used throughout this Article for
convenience.
2. Choper, The Supreme Court and the Political Branches: Democratic Theory and
Practice, 122 U. PA. L. REV. 810, 815 (1974) [hereinafter cited as Choper].
3. McClesky, Judicial Review in a Democracy: A Dissenting Opinion, 3 Hous. L. REV.
354, 359 (1966) [hereinafter cited as McClesky].
4. A. BICKEL, THE LEAST DANGEROUS BRANCH 18 (1962) [hereinafter cited as BICKEL].
5. M. COHEN, THE FAITH OF A LIBERAL 178 (1946).
6. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7
HARV. L. REV. 129, 143-44 (1893); see Dennis v. United States, 341 U.S. 494, 525-26 (1951)
(Frankfurter, J., concurring).
1099

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