In Defense of Judicial Review: The Perils of Popular Constitutionalism
Erwin Chemerinsky | 2004 U. Ill. L. Rev. 673
Since the 1920s, progressives have flip-flopped on the merits of judicial review at least three times. In the last few years, they have been forging a return toward the anti-judicial review camp, which ironically puts them in line with today’s conservatives. The trendy progressive movement against judicial review calls itself “popular constitutionalism” and has at its helm such prominent scholars as Mark Tushnet, Larry Kramer, Richard Parker, and Jeremy Waldon. They contend in varying degrees that people—not judges—are the best arbiters of constitutional interpretation.
In his Baum Memorial Lecture on Civil Liberties and Civil Rights, Pro-fessor Erwin Chemerinsky demonstrates that popular constitutionalism is exactly the wrong strategy for progressives because it rests on flawed premises and comes to undesirable conclusions. Professor Chemerinsky proposes instead that progressives formulate an alternative vision of ju-dicial review, distinct from that which the conservatives and popular con-stitutionalists espouse, and in which the courts play a central role. Be-cause history has shown that the way prominent scholars view judicial review today will influence how it is practiced tomorrow, the real danger, Professor Chemerinsky fears, is that popular constitutionalism will un-dermine judicial review in the long term, creating progressive judges who, in the name of judicial restraint, are reluctant to enforce the Constitution to advance liberty and equality.