Contemporary democratic theory often posits that the will of the majority should resolve fundamental questions regarding rights, rather than the courts. However, this perspective misunderstands the essence of democracy, where the protection of basic liberties by the judiciary is, in fact, integral to democratic governance. Recent Supreme Court decisions have made it a challenging time to defend judicial review, seemingly validating the concerns of its critics. Are the sceptics correct in asserting that an unrepresentative branch should not decide fundamental questions about rights? Alexander Kaufman argues that such a conclusion overlooks the crucial role judicial review has played in modern democracies: dismantling Jim Crow laws, abolishing poll taxes, and striking down numerous other discriminatory laws enacted by elected representatives laws that erode democratic values. Far from diluting democracy, judicial review is a vital component of it and abandoning this practice would be a concession to its adversaries.
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'Democracy, Liberty, and Judicial Review is an excellent deep dive into one of the fundamental questions of political theory: can a court function not as a limit on democracy, but in its service? Kaufman offers a deft and compelling answer-one that anyone grappling with this perennial question will need to contend with.' Corey Brettschneider, Professor of Political Science, Brown University
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Defends the essential role of judicial review in maintaining a legitimate democratic political culture.
Acknowledgements; Introduction; Part I. The Majoritarian Critique and
the Constitutionalist Response:
1. Majoritarian arguments;
2. Judicial review
and the constitutionalist conception of democracy;
3. Bad consequences:
consequentialist criticisms of judicial review; Part II. Indirect Attacks on
Judicial Review:
4. The failure of originalism as a theory of legal
reasoning;
5. An economic theory of law?; Part III. Democracy, Liberty, and
Judicial Review:
6. What is democracy?;
7. Representation and democracy: the
merger of opposites;
8. Protecting liberties in a democracy;
9. Judicial
reasoning in a democracy; References; Index.
Alexander Kaufman is Professor in the Department of Political Science at the University of Georgia. His research explores the relation of central values of the democratic tradition to issues in egalitarian justice and the basis of democratic legitimacy. He is the author of Rawls's Egalitarianism (Cambridge, 2018) and Welfare in the Kantian State (Oxford, 1999), as well as numerous articles and chapters in edited volumes.
