The Distracting Debate over Judicial Review

Abstract

The debate over judicial review includes theories that reject, as well as those that endorse, or are indifferent or mixed in evaluating judicial review. There are also a wide range of possible forms of judicial review, with varying scopes and strengths. Despite the prominence of such theories, this article will argue that all such theories are practically misguided. The game they allow people to play is not worth the candle thereby consumed. Briefly put, the rough idea is that once one controls for other relevant variables, the form of judicial review itself, if any, only minimally affects the overall moral value of the constitutional system. Thus, this article will not argue for or against any principled normative theory of judicial review on the merits. Instead, it will argue that the effort devoted to working out principled normative theories of judicial review would be more beneficial if devoted elsewhere. Considerations that can be separated from one's own principled normative theory of judicial review are normally judged far more morally weighty and rightly so.