segunda-feira, 25 de março de 2013

Correntes sobre o Judicial Review nos Estados Unidos



Why *Judicial* Review: A Preliminary Typology of Scholarly Arguments

Posted: 24 Mar 2013 06:33 PM PDT

Richard Albert, Boston College Law School

It was perhaps inevitable that the advent of written constitutionalism

would quicken the rise of judicial review. The writtenness of a

constitution creates a ready-made argument in favor of judicial review,

namely that the constitutional text sets the standard against which the

constitutionality of governmental action must be measured, and that any

governmental action to the contrary is invalid. So argued Chief Justice

Marshall in Marbury v. Madison, perhaps the most celebrated judgment

establishing judicial review.

If any rule follows from a written constitution it is that an act

inconsistent with its text is unconstitutional, and that an identifiable

entity must declare the act void.

But there is a missing link in the chain connecting written

constitutionalism with judicial review: must judges necessarily be the ones

given the binding authority to review the constitutionality of a

governmental action?

Modern constitutionalism answers the question in the affirmative. Glancing

around the world to the constitutional practices of liberal democracies, it

appears that the preponderance of regimes adheres to the rule of final

constitutional review by the judiciary. This should perhaps come as no

surprise. Given the choice between constitutional review by an independent

judiciary freed to take a longer view of history disentangled from the

intrusive pressures of electoral politics versus a body more likely to be

motivated by political expedience and the immediacy of the moment, we may

find greater reassurance in the former.

Scholars have made many arguments about why the power of constitutional

review should be held by politically-insulated judges rather than

politically-motivated legislators or, in other words, why review should

be judicial rather than legislative.

It is useful to disentangle the different arguments in favor of judicial

review and to classify them into a preliminary typology.

I should note, however, that this is a preliminary effort to construct a

typology of arguments in favor of judicial review. Comments are more than

welcome to highlight omissions or errors, and to improve this working


Each of the following represents a different voice advancing the argument

that courts are better suited than legislatures to interpret the

constitution as a final and binding matter. (1) rights defenders; (2)

institutionalists; (3) proceduralists; (4) stabilizers; and (5)


Rights defenders like Charles Black and Erwin Chemerinsky approach the

question of judicial review from the perspective of rights and their

security. Who, they ask, is best situated, given experience and expertise,

to protect the rights entrenched in a constitutional text? The answer from

rights defenders is judges, because judges are freed from political

pressures, they are more competent than legislators to give substantive

content to rights, and they may more fairly adjudicate disputes that arise

from the boundaries of rights. Rights defenders appear to be motivated by

fear of the consequences of majoritarianism, which, to them, would be

utterly “chilling” because “the rights of minorities would be largely left

to the whims of the political majority with severe consequences for racial,

ethnic, sexual orientation, and language minorities as well as criminal

defendants, public benefits recipients, and others.” [Erwin Chemerinsky, In

Defense of Judicial Review: A Reply to Professor Kramer, 92 Cal. L. Rev.

1013, 1013 (2004).] Better, they say, to leave to courts the task of

defending the integrity of our rights.

Institutionalists like Owen Fiss are more squarely concerned with the

competence of the legislature versus the judiciary in constitutional

interpretation. Why might we prefer to privilege the interpretation of

courts over that of legislatures in interpreting the constitution? Their

answer turns on two institutional characteristics that distinguish courts

from legislatures: first, once appointed, judges in liberal democracies are

typically independent of the other political actors, either because they

have life tenure or because they are subject to removal under only the most

exceptional circumstances; and second, the function of judges is to express

and apply our constitutional values.

For institutionalists, the contrast between legislatures and courts reveals

much about their competencies and about the conventions that restrain them.

Judges are subject to a number of limitations on their power: (1) they

exercise their institutional authority only if they are asked to do so;

they do not take up matters of their own choosing; (2) they are required to

give an audience to aggrieved and interested parties; (3) they must respond

to the claims raised before them; and (4) they must justify the judgments

they issue. Unlike legislatures, which “are not ideologically committed or

institutionally suited to search for the meaning of constitutional values,

but instead see their primary function in terms of registering the actual,

occurrent preferences of the people,” courts are expected to adhere to a

different standard. Judges must justify their decisions with public reasons

that “transcend the personal, transient beliefs of the judge or the body

politic as to what is right or just or what should be done.” Their task

“should be seen as giving meaning to our public values and adjudication as

the process through which that meaning is revealed or elaborated.” In this

way, the public values that judges reflect in their judgments are

themselves important power-limiting constraints on the authority of courts.

[Owen Fiss, The Supreme Court 1978 Term—Foreword: The Forms of Justice, 93

Harv. L. Rev. 1, 10, 13, 14 (1979).]

What proceduralists like John Hart Ely and Cass Sunstein seem to value is

popular participation in the democratic process. They are sensitive to the

criticism that judicial review undercuts the principle of majority rule,

but they nonetheless accept judicial review as a necessary feature of

democratic government. But how can proceduralists defend a position that

values both participatory democracy and judicial review? For

proceduralists, judicial review serves the purpose of facilitating the

expression of majority will and they defend judicial review only to the

extent that it enhances the democratic process. We ought to celebrate

judicial review, they say, when courts “proceed[] in a way that is

catalytic rather than preclusive, and that is closely attuned to the fact

that courts are participants in an elaborate system of democratic

deliberation.” [Cass R. Sunstein, One Case at a Time: Judicial Minimalism

on the Supreme Court 263 (1999).] The objective is to promote

decisionmaking by democratically accountable bodies, and to rely on courts

to ensure that democratic majorities reach decisions by truly democratic


This proceduralist position on judicial review argues that courts should

use their powers of constitutional review to police the fairness of the

mechanisms that allow people to express their views. Judicial review, on

this view, is appropriate when, for instance, a class of persons blocks the

voiceless, powerless or disadvantaged from accessing the apparatus of

social change, or when elected representatives act hostilely or

prejudicially toward a minority group by denying members of that group

equal treatment and equal opportunity to participate in the democratic

process. In those cases—specifically cases requiring “unblocking stoppages

in the democratic process”—it is the role of courts to correct those

deficiencies in the representative system of government and to create space

for those groups to be heard alongside the other voices that commonly

participate in public discussions. [John Hart Ely, Democracy and Distrust

7, 103, 117 (1980).]

In contrast to rights defenders, institutionalists and proceduralists,

stabilizers are most concerned with how to create and subsequently ensure

stability in the institutional interrelationships among the judiciary, the

legislature and the executive. How can we resolve disputes in a way that is

reliable, predictable, and authoritative? How, in short, can we foster

stability in constitutional adjudication and interpretation? Those are the

questions that inform how stabilizers approach judicial review. Their view

is represented by United States Supreme Court Justice Louis Brandeis, who

once wrote, in dissent, that “stare decisis is usually the wise policy,

because in most matters it more important that the applicable rule of law

be settled than that it be settled right.” [Burnet v. Coronado Oil & Gas

Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)] That we achieve

settlement, leaving little up for dispute, is what stabilizers hope to

achieve. But stabilizers do not value settlement for the sake of settlement

alone. Stabilizers pursue settlement for the sake of ensuring stability in

the constitutional order.

Stabilizers begin from the proposition that the core function of law is

settle things. In the context of judicial review, stabilizers regard the

judiciary’s role favorably because its supremacy in constitutional

interpretation extinguishes doubt about the validity or legitimacy of its

constitutional judgment. Stabilizers argue that, “to the extent that the

law is interpreted differently by different interpreters, an overwhelming

probability for many socially important issues, it has failed to perform

the settlement function.” [Larry Alexander & Frederick Schauer, On

Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359, 1377

(1997).] Deferring to the judgment of the judiciary on contested

constitutional meaning helps bring stability to the polity. This is a

salutary result because “in a world of moral and political disagreement,

law can often provide a settlement of these disagreements, a settlement

neither final nor conclusive, but nevertheless authoritative and thus

providing for those in first-order disagreement a second-order resolution

of that disagreement that will make it possible for decisions to be made,

actions to be coordinated, and life to go on.” [Larry Alexander & Frederick

Schauer, Defending Judicial Supremacy: A Reply, 17 Const. Commentary

455, 467 (2000)]

Consolidators like Bruce Ackerman differ from others on one important

ground: they accept the criticism that judges may possess less democratic

legitimacy than legislators but they see courts as nation-building

institutions. For consolidators, democracy demands uniting disparate

individuals as citizens bound to themselves and to their state. One way to

do this, for consolidators, is to create national myths that derive from

national institutions, for instance a constitution.

Consolidators see courts as institutions whose role is to discern,

synthesize, and subsequently reflect the political and cultural norms that

citizens and political actors shape in the course of democratic processes.

The court’s role here is to take a longer view than what legislators may

allow themselves in the day-to-day politics that occurs in the trenches of

political negotiation and lawmaking. Courts are better at this function

than legislators, say consolidators, because courts, as final and binding

arbiters of constitutional meaning, can better identify and defend the

nation’s existing constitutional settlements from changes in constitutional

meaning that have not yet met with the public’s endorsement or acquiescence.

All five groups agree that judges, not legislators, should have the power

to interpret the constitution as a final and binding matter. Rights

defenders, institutionalists, proceduralists, stabilizers and consolidators

all defend judicial review as consistent within the democratic tradition.

Even though judicial review may not align with the majoritarian bases of

democracy, these five groups nonetheless make a strong case that democracy

either means more than majoritarianism, or that it demands an institutional

check to police the decisionmaking processes of majorities, or that

democracy demands respect for other values namely predictability,

reliability, and stability.

These are strong arguments as to why courts should have the power of

constitutional review. It is another matter altogether whether they are


Suggested Citation: Richard Albert, Why Judicial Review: A Preliminary

Typology of Scholarly Arguments, Intl J. Const. L. Blog, Mar. 25,

2013, available at:

Nenhum comentário: