GW Law Faculty Publications & Other Works Faculty Scholarship 2012 The Institutional Case for Judicial Review Jonathan R. Siegel George Washington University Law School,
[email protected] Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation 97 Iowa Law Review 1147 (2012) This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact
[email protected]. A3_SIEGEL.DOCX (DO NOT DELETE) 5/6/2012 4:03 PM The Institutional Case for Judicial Review Jonathan R. Siegel ABSTRACT: The “popular constitutionalism” movement has revived the debate over judicial review. Popular constitutionalists have attacked judicial review as being illegitimate in a democracy or inconsistent with original intent, and they have argued that the Constitution should be enforced through popular, majoritarian means, such as elections and legislative agitation. This Article shows in response that the judicial process has institutional characteristics that make judicial review the superior method of constitutional enforcement. Prior literature has focused on just one such institutional characteristic—the political insulation of judges. This Article, by contrast, shows that the case for judicial review rests on a whole range of institutional distinctions among the judicial, electoral, and legislative processes. Most important among these distinctions are that the judicial process is focused (it resolves issues discretely, without entangling them with other issues), whereas the electoral process is unfocused; and the judicial process is mandatory (a complainant can invoke it as of right), whereas the legislative process is discretionary.