Technocracy and Distrust: Revisiting the Rationale for Constitutional Review

Two hundred years after Marbury v. Madison, constitutional review has spread to all parts of the world. Yet it remains an eminently contentious practice, which has spawned a vast scholarly literature. Surprisingly, though, little has been done to make the normative debate conversant with comparative and empirical research on judicial behaviour and institutions. The present paper seeks to evaluate two distinct approaches to the justification of constitutional review which it takes to be implicit in the normative scholarship: (1) The Principal-Agent Model, which essentially views constitutional review as a means to enforce the choices of the constitutional framers over recalcitrant legislative majorities. And (2) the Trustee Model, which casts constitutional judges as trustees of the political system: their task is to ensure that the legislative process produces the â bestâ policy outcomes. In light of the courtsâ organizational setting, incentive structure and actual impact on policy outcomes, the Trustee Model is found to provide both a more accurate picture of how judicial review of legislation works in reality and a more solidâ albeit by no means problem-freeâ rationale for the institution. The Trustee Model shifts the focus from constitutional interpretation to the courtsâ real impact on policy outcomes, such as de facto human rights protection. But while there is some empirical evidence that constitutional review may improve some policy outcomes some of the time, the analysis also makes plain that the best available justification for the practice rests on contentious normative assumptions.status: publishe