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An Analysis of Judicial Review Theories of US

Author: GuJia
Tutor: QiShuJie
School: Xiamen University
Course: Procedural Law
Keywords: Judicial Review Legal Methods Constitutional Interpretation
CLC: DD916.2
Type: Master's thesis
Year: 2007
Downloads: 198
Quote: 2
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Abstract


Judicial review, or constitutional adjudication, has been the heat of a long time debate maybe since Marbury v. Madison but especially so after 1960s. And the focus of this debate is about the legitimacy of it, or so-called countermajoritarian difficulty-the tension between judicial review and democracy. There are so many different theories in this debate that a new comer is easy to lose her way in this intellectual scene. The author would like to try to provide a rough framework within which we can divide these very diverse theories into groups and to compare them with one another-that is, the legal methods they apply to guide constitutional adjudication, especially theories about constitutional interpretation.The author shall argue, the primary feature of these theories lies in what they aim to fit, written Constitution or the constitutional practice. This can be seen as a dichotomy as more positive or descriptive on one hand and more normative or prescriptive on the other. The former group builds its interpretation on positive constitution, focusing on how to fit their theories with the written constitution and the latter focus more on how to fit their theories with social practice such as moral behaviors or political watersheds.With an introduction the author clarifies the conceptions of legal methods, legal methods in judicial process and legal methods in judicial review, and argue the most important legal method in judicial review is constitutional interpretation; and the meaning of discussing the legal methods of judicial review lies in the connection between the legal methods and the legitimacy of judicial review which is most probably under fire in hard cases. In Chapter Two the author begins her analysis of first of the two major groups of this dissertation, that is, the more positive one-“text-based theories”. The author chooses Originalists and John Hart Ely as the representatives of text-based theorists. Chapter Three is about the latter of the dichotomy, practice-based theory such as the“law as integrity”approach of Ronald Dworkin and dualist democracy theory of Bruce Ackerman. And in the Conclusion part the author borrows the comment from Judge Richard A. Posner about the different attitudes between legal theorists and average American people toward the legitimacy of judicial review to conclude this dissertation.The author doesn’t advance her own view in this debate or about constitutional interpretation, nor is she any nearer from exhausting the competing theories. This dissertation is a very inadequate effort toward a framework about this debate.

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