In Defense of Judicial Review: The Perils of Popular Constitutionalism

Since the 1920\u27s 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\u27s conservatives. The trendy progressive movement against judicial review calls itself popular constitutionalism. They contend in varying degress that people--not judges--are the best arbiters of constitutional interpretation. In his Baum Memorial Lecture on Civil Liberties and Civil Rights, Professor 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 judicial review, distinct from that which the conservatives and popular constitutionalists espouse, and in which the courts play a central role. Because 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 undermine 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