Liberal constitutionalism and democratic reason: A justification of judicial review

This dissertation gives a justification of judicial review, which is the institution of courts having final authority to interpret a constitution. Under the family of liberal democratic political theories, judicial review can be justified, even though it constricts popular control over important political decisions, as a means of protecting basic democratic liberties and perhaps promoting other important social goods. On this view, democracy is not simply a procedural matter of popularly-responsive government, but a form of sovereignty that requires a variety of substantive rights, potentially including rights unrelated to the political process. Since the rights judicial review might protect must be further articulated and specified to apply to particular cases, however, the democratic justness or legitimacy of judicial review requires that judges interpret constitutions using methods of interpretation that can themselves be democratically justified. This dissertation shows how a Rawlsian idea of public reason supplies the basis for just such a method of reasoning, one that proceeds based on reasons all reasonable persons could accept in their capacity as democratic citizens. This idea of public reason applies not only to judges or where matters of fundamental justice are at issue, but ideally can be extended to regulate much, if not all, public political debate in a democracy