Enoch, Session 3 (Judicial Review and Majoritarianism), Part 1

Added: 2026-05-05

[00:00:08]welcome to the third our course the low philosophical aspects this time about Judas review and majoritarianism so the topic of judicial review of which I'm sure you've heard before in many many different context and very least raises some Democratic discomfort the feeling that the thought that courts should be able to somehow strike down legislation by the majority in the legislature in the representative body at the very least leaves some unease and so we want to see if we can clarify that discomfort in a more robust and careful kind of way you may even think that judicial review at least of legislation is undemocratic or perhaps elitist or in some context people would say dictatorial but really once you get into it it becomes anything but obvious what exactly the worry is what the problems with the judicial review are supposed to be exactly how they are to be fleshed out and whether either judicial review or its rejection can withstand critical reflection indeed once you get into the topic you may find it necessary to get deeper in it may be the case that the fate of judicial review should be decided only with a clear view of the fate of democracy and majoritarianism more generally why it is the democracy in majoritarianism matter how it is that they matter if indeed they do and so on so this is what we're going to be doing here we're going to try to clarify the worries about judicial review at least some central worries we're going to try to think about arguments for judicial review and we're going to place the discussion in the somewhat wider political philosophy context of discussions of the justification of democracy and majoritarianism okay so we need a few clear acute ory points here what is it that we're talking about when we're talking about judicial review one thing that we're not going to be talking about or anyway not focusing on is the court a single Court or the courts in general of authority to review the administration to review actions by the executive branch this is something that courts do all the time and then at least from the point of view of constitutional theory or even from the point of view of political philosophy is not in any serious way problematic certainly no problems about democracy come up here I don't want to note though that even though questions about the courts review of the administration even though they're not that theoretically interesting they may be politically interesting and they may indeed be politically dangerous in many places only in the country where I'm coming from much of the fire that's directed at courts much of the criticism of courts much of the claims about courts or the Supreme Court's so-called judicial activism much of it comes not because of the very few cases in which the Supreme Court has struck down legislation but but because of many more cases in which the court has reviewed the administration's actions so if you want to focus on what makes most difference practically it's quite possible that this is what we should be talking about but this is mostly a theoretical course and from a theoretical point of view the courts authority to review the administration is not that interesting really so we're going to be focusing rather on the courts authority or purported authority to review legislation to review actions by Parliament and in particular perhaps to strike them down at least sometimes because they are unconstitutional now here too we need a few distinctions one distinction is that between procedural and substantive reasons for striking down a piece of legislation sometimes a court may strike down the piece of legislation perhaps because it wasn't it didn't go through all of the right moves in Parliament based on the parliaments own rules a modus of operandi this kind of judicial review is important and interesting sometimes it can be politically significant but we are going to set it to one side at least for the most part of our discussion rather we're going to be focusing more on the cases of judicial review based on substantive considerations so procedure to one side should also be acknowledge that there really is no one uniform uniform phenomenon called judicial review judicial review has many different shapes and it takes different shapes in different jurisdictions in different in different context so I just want to highlight some of these differences and then to avoid discussing them for for the most part one important distinction is what exactly is the court authorized to do when it is reviewing legislation perhaps that they extreme the court may be able to strike it down to declare a piece of legislation unconstitutional and so void but this is not although this is without a question the sexiest form of judicial review it is in no way the only way of judicial review and we know from other jurisdictions other jurisdictions and other traditions other forms of judicial review perhaps for instance the court has merely the authority to point out that a piece of legislation is problematic it is purportedly unconstitutional and then to return it to Parliament for further review and there may be other other options as well so this is just along the dimension of the strength of the review we have at least this distinction between two and maybe more functions another important question is who or which institution has the authority to engage in judicial review and there are many options here so one option would be to have a special Constitutional Court in some cases even a special Constitutional Court whose judges are appointed in a special procedure perhaps there are closer to a another chamber of parliament in some respect or you may think that the authority to judicial review should reside with the normal Supreme Court but then we need to talk of course about the judges there how they are appointed and so on or you may think that the power to engage in judicial review of even primary legislation should reside with any court whatsoever so long as the case comes up when the constitutionality of a piece of legislation is relevant and there may be other options as well yet another important distinction sort of within the set of cases in which traditional review may be relevant our cases are questions about how wide are the substantive grounds that call for judicial review perhaps a part of it can be a part of the could be what's written in the Constitution about judicial review or perhaps in some presidents but another possibility is that what determines how wide the scope of considerations that allow for judicial review is something like constitutional custom or maybe some kind of internal unenforced judicial restraint and there may be other options here as well so as I already said for the most part we're going to be ignoring these complications and when we just need to focus our attention on a way of doing judicial review we're going to focus our attention on a Supreme Court engaging in judicial review with the possibility of striking down a piece of legislation but as I hope you can see when we're going to be discussing justifications for judicial review and possible objections to judicial review the discussion of the details may be relevant it may be the case that some forms of judicial review are justifiable and others aren't for instance it seems much easier to justify a form of judicial review that merely allows the court to return the case to Parliament then a form of judicial review that allows the court to strike down a piece of legislation now going in the opposite direction it's possible that what arguments we will find plausible will depend on the kind of judicial review we have in mind so with that in mind we're going to set it aside and focus on the clearest strongest case now what exactly is supposed to be the problem so as I said judicial I mean as you'll see later on I'm not as suspicious of judicial review as some others however I agree that there is a suspicion so we're trying now to diagnose the suspicion what exactly is the suspicion there I don't think it's primarily about judicial activism roughly the thought that judges do too much that instead of just calling balls and strikes is it's sometimes put in baseball and go what they do is take on a more active role I don't think that's the main thing because as I already said at least the main the main location for worries about activism it really has nothing to do with judicial review of primary legislation it's primarily about judicial review of the administration which is different topic and not a really profound one from a democratic theory point of view so I don't think that's the main the main concern you may think that what's going on with judicial review of legislation is not just the elite activism but that it's judicial activism of a specific kind perhaps a specific more hard to justify kind now that's a possibility of course but notice keep your eye on the ball is it work we're doing a lot of baseball here today if that's the word if the worry is that it's an especially problematic hard to justify kind of judicial activism then the question immediately arises well what is so special about this kind of activism compared to others and then as far as I can see we're pretty much back where we started trying to highlight special problems with judicial review so I don't think the talk of judicial activism is going to be very helpful here you may worry some people certainly some politicians clearly speak in this way as if the problem is that judges may become too political or maybe in just become politicians but I don't think that's a very promising way of looking at the worry about judicial review either for the following two reasons the first one is that merely by engaging in fairly rare and somewhat restrained constitutional review of primary legislation judges do not immediately become politicians this is just a terrible hyperbole and on the other hand it's not as if they haven't been doing any politics at all that they are to an extent engaged in at least what can be thought of fairly widely political political action so it's not like they've been entirely free of politics and it's not like they immediately become party members by engaging in judicial review so I don't think that's the right the right way to think about about the initial suspicion or worry visited judicial review here's another really important point some people talk as if the problem with judicial review is that it's undemocratic in a kind of definitional way it's the very definition of democracy that so-and-so presumably one-person one-vote or maybe majority rule along these lines and then here's the problem with judicial review it violates democracy just defined or thus understood but it can't be what we're worried about because what you are worried about what you should be worried about always at least we need to philosophy but almost always in general is not how you say it but what you say right the question the important question now is not how to use the word democracy or whether we can describe judicial review is democratic or not the important question is whether to engage in judicial review or whether to support institutional design that allows for judicial review these are the important questions and then if you don't want to use the word democracy for it I'm okay if you use the word democracy star or some other words entirely it's about what we say it's not about how we say so definitions can't be what does the work here what may be doing the work is something deeper it's not about the word democracy rather it's about why it is that we care about democracy to begin with it's about the values or normative considerations and constraint that underlie our concern about democracy and with that in mind now we can ask whether the best understanding of democracy or the best understanding of the values underlying democracy supports or perhaps is in tension with a practice of judicial review it's not about the word democracy it's about the normative considerations that it's supposed to be about and so there's going to be more of that in what's to come I want to sort of pause for a methodological point just for just for a few a couple of minutes in legal discussions it's very very important to ask where the burden of proof lies right it's a kind of a default position if no one's successfully makes their case then the side the party that wins is the party that did not have the burden of proof that did not have to prove anything you may ask a similar question for theoretical discussions as well so we will be presenting here following the literature arguments on both sides arguments that are meant to capture what's problematic about judicial review but also arguments that are and to justify judicial review perhaps even say that it's required that it's a necessary part of a just system of government what if no argument escapes prison well no argument will escape criticism because that's the business right we're in the business of criticizing critically evaluating arguments but what if no arguments at the end of the day emerges successful after the critical evaluation well then it seems like the party that should win is the party they did not have the burden of proof so that's one plausible way of thinking about things here at case initially plausible it's about the default position but the burden of proof or if we're going to be somewhat more realistic in philosophical context the burden of argument it's not easy to place the burden of argument in philosophical discussions and it's not really easy to see how helpful it is because at the end of the day perhaps unlike in legal procedures what we're looking for is the overall best theory the one that perhaps answers in the most plausible way to all of our concerns it's not clear that procedural or semi procedural considerations about the burden of proof or the burden of argument can be very helpful here so one possibility is that the default position is symmetrical if no argument escapes criticism we should just settle for saying that we don't know what the moral status of judicial review is or perhaps even that there is no answer to the question of whether judicial review is justified or not it's just somewhere in a limbo state in the middle that's a possible way to go or perhaps and that's something that I'm going to want to return to a little later on perhaps some something of the initial we're about majoritarianism and democracy perhaps something about that initial worry survives if not as an all-out argument against judicial review at least as a reason to place the burden of proof on those who attempt to justify judicial review so perhaps the thought is look ordering democracy we're doing majority rule unless you have a good reason to go with judicial review we're going with our legislature and I'm going to want to come back to the thought that maybe at least as a defense of a weak default position some about majority majoritarianism and democracy can still succeed okay then let's start with the arguments and these are going to be arguments I'm going to start with arguments against judicial review and then I'm going to go to arguments for judicial review and I want to I want to make a few general comments here the first one is that as in many many other cases where what we're discussing is institutional design and this is really what we're doing when we're asking about judicial review the questions are always comparative so this is not the case what we're asking is it a good idea if the state has the authority to do something or not it's pretty much given that we're in the territory in which the state has authority to proceed the question is which state institution or which state organ will have that authority and once that's the question the question is clearly comparative the thing to keep in mind is that the question now becomes not whether we want something decided but whom do we want to decide it by and so in particular whether we want to decide it by the court or maybe courts as the case may be or by the legislature or by Parliament so we're going to want to discuss for instance for any objection to judicial review any reason showing why it's not a really good idea for courts to decide some of these issues it's going to be important to see whether it's a better idea for Parliament to decide them and if not perhaps were stuck with an organ that's less than ideal but still the best alternative similarly of course for arguments for judicial review the question is always going to be and sometimes explicitly but even when all it's going to be at least implicitly comparative it's going to be about the comparative virtues of different institutions different state organs okay let's return to the word we started with namely they thought that there is something anti-democratic about about judicial review and let's try to precisely fight to make that worry at least somewhat more more exact more precisely put now perhaps the thought should be something like the following the main idea of democracy again not about the definition the main reason why democracy matters is that the governed should do the governing and the people's sovereignty at least in modern democracies is mediated by the legislature so or by the legislative branch so when the legislature has spoken the people have spoken what judicial review does though is to not allow the people to have its way even though it's it has spoken in this way so what you do if you allow for judicial review is you allow for a small number of judges to overturn the word of the legislature namely to overturn the word of the people that's allowing the minority to rule rather than the majority perhaps this is the problem that's often referred to in the context of discussions of judicial review as the counter majoritarian difficulty but it should be very clear that the stated the worry is terribly oversimplified all of this is just far too simple we know that in modern democracies the people speak if they speak at all via institutions and I want to emphasize that if they speak at all because I'm not sure that I'm happy with such locutions they sound to me at least often metaphorical and at least somewhat often also politically dangerous but to the extent that it's ever true that the people have spoken rather than that an election has been decided if it's ever true that the people have spoken then it's true because the because of the work of institutions if the people speak at all they speak via institutions one way of viewing this is to talk about all the nitty-gritty details of how it is that the people purportedly speaks in a contemporary democracy so we need to talk about rules of procedure we need to talk about election laws we need to talk of course about campaign financing and how they influence things we need to talk about legislative procedures and perhaps about many other things of this kind so it's not as if the people speaks in a loud clear and uniform voice that's just not how it works if the people makes a decision they make a decision by a really complicated procedure that is subject to all of these factors and I'm not even criticizing krisi just yet this is to a large extent inevitable but we should remember that it's not as if the people have spoken and then on the other side there is a small institution trying to make decision the question when it once again is not whether the relevant authority is going to reside with the people or with an institution the question is once again comparative as between different institutions the only question is which institution it's going to be it's going to have to the authority to decide the relevant question and if you're not convinced of this here's a thought experiment you may think to imagine a case where a jurisdiction where there is judicial review and now imagine the intricate kind of relation that exists between the court and Parliament on cases that at least purportedly give rise to consider to constitutional difficulties now think about that procedure the procedure that includes is a part of the huge procedural black box also the intricate relations and into relations between the court and the legislature this is yet another procedural black box there's nothing more significant about it and about the other procedural black boxes that we've already mentioned things about the election laws things about campaign finance and so on so it's very natural to think of the procedure that also includes judicial review as yet another complication in your already complicated institutional legislative procedure so once again institutions are going to decide it I don't know if you're happy talking about the people speaking but if you are you should acknowledge that the people will be speaking via institutional mediation of one kind or another so if we're going to have such an institutional mediation already why not the court what are the legislators advantages compared to the court visibly these issues and I think it's safe to say that two advantages are at least usually mentioned one is about accountability and one is about representation so very roughly when it comes to the members of the legislature they are at the very least accountable in the following way another election is behind is just around the corner so it's not clear how much you can influence your Member of Parliament or your Congressman or your member of Knesset but even if you can't influence him or her that much while they're in office at least you can throw them out in a few years when it comes to judges this isn't always the case it's not the case in at least in the cases we're going to be discussing namely cases in which judges are appointed for life so in this respect judges and so purportedly courts are less accountable than members of the legislature and so purportedly the legislature this is about accountability there is also the point about representation so at least ideally you would think that Parliament represents the people better in it perhaps more inclusive more comprehensive way than the court is so let's spend some time on this way of understanding or these ways of understanding the advantages of parliament over court or viewed in the other directions reasons to suspect that maybe the court is not the right institution to decide the relevant matters so we need to talk about but it's about accountability we talk about representation and we need to try and find out why it is that they matter if indeed they do once again though we should bear in mind that matters are not quite as extreme as some political rhetoric sometimes make it make them sound so even though judges are or so we're assuming appointed for life it's not as if they are entirely insensitive to public opinions in fact this is a matter for empirical studies and some empirical studies have been done on this and it seems that courts are not far behind public opinion even when compared to more run-of-the-mill politicians like members of the legislature perhaps once again what we need to do is to dig in deeper now perhaps we need to think about again the justification of democracy and majoritarianism and the relation if there are n - accountability and representation very well then why endorse majoritarianism now this is something that may sound as if it's obvious but upon even just initial reflection it's anything but obvious remember the people you don't like at the grocery store some of your colleagues whom you think are not remotely as intelligent as you are or this sort of friend who is not as kind as they should be and so on they are the people they are the people who will have the governing power many of them are ignorant in general or of the topic at hand some of them may not be the best intentioned either and it's not clear that they should get to decide and it's certainly not clear that the majority of those people should get to decide this at the very least at the very least calls for some substantive justification and when I say substantive justification one of the things that I have in mind is that definitions will not do so saying something like well obviously majoritarianism is the way to go because majority rule is just a part of what democracy means that would be unhelpful because we don't care about what words mean and if we find out the democracy means something that's just not morally justified then we can shift to another word right so definitions once again will not help the important question is why is it that we think if indeed we do that majority rule is important and here as I'm sure you can imagine the literature contains much more than one possible answer and we're not going to have we're not going to actually get into all of the possible answers but I want to spend some time on what at least seems like a really initially powerful way of thought and that's the thought that what majority rule does what the rule one person want to vote that successfully is to divide political power equally which is something that we should do so roughly the thought is political power is something good it's good to have political power it's and so what you want to do is to divide the political power pie between different people equally or roughly equally and I think that at least in some context and I'm not sure that it applies as well to the political context as we'll see but at least in some context I think that the thought that majority rule or a decision procedure according to majority rule does divide political power equally I think that thought can be very very intuitively appealing so think about smaller contexts suppose there is a group of people and we need to decide which restaurant we're going to go to go to for dinner there are many many decision procedures we could contemplate right one would be to just use some arbitrary randomizing device another would be to just let me decide or let you decide or we could go with crazy options - right you could hear what my first option is and then go for the thing that's as far away from it as possible there are many possible decision procedures but I think it's hard to deny that there's at least one very strong normative consideration in favor of one-person one-vote and the thought is roughly look there's a group of people we have different preferences when it comes to dinner but your preferences are at least Pro tanto as important as mine they're not more important than you know that's important and equally for any other person here so we should have a decision procedure that recognizes this fact may be that even symbolises this fact the fact that our preferences are equally important at least when other things are equal and a good procedure for that would be one-person one-vote so you get your vote I get my vote every person in our group gets one vote and then if there's a majority for going to that nice Italian place then we should go for that nice Italian place because that's the decision that was accepted in a procedure that gave all of us an equal share an equal part of the relevant political small-scale political power so this is I think the intuitive thought about one person one vote and the relation to the Equality to a distributive kind of consideration equality in the distribution of political power if so any deviation from majority rule will be a violation of the equal distribution of and so this should give you at least the initial thought about how there's a suspicion about a judicial review if you allow the court to overturn majority rule if majority rule encompasses something about the equal distribution of political power here's your problem of judicial review it violates the equal distribution of political power now as I said I think that this is an important line of thought and I also think that one-person one-vote is irrelevant moral considerations in many contexts mostly in small number contexts like the dinner the dinner decision problem that I described but there's much more to be said here about this kind of argument once we have moved back to the scale of a contemporary state a contemporary political state one question that you can ask is whether one-person one-vote and in particular in our context not allowing the court to interfere no judicial review and so the authority resides ultimately with the legislature whether it does in fact distribute political power equally in the dinner example there was at least a plausible case to be made that that is exactly what happens when we go with one person wonderful no one gets more of the political power pie than anyone else but in the political case that just does not seem right at all one thing we could do is just to do some political science don't worry I'm not gonna but it's at least a good initial start right we can talk about facts and we know something about how political power is usually divided in contemporary in contemporary States and equally is not a good description of what's going on some of us can buy campaign ads and some of us cannot this is a huge difference right there some of us are sufficiently witty or perhaps sufficiently influential within academia or perhaps sufficiently well educated to get an op-ed into a fairly influential newspaper or website some of us are not that's a huge difference in political power and there are other differences as well so once we're not talking about the group of people going for dinner but but about a political end deciding its course the thought that one-person one-vote equals an equal distribution of political power it's just terribly naive it flies in the face of effects in fact that is so clear that it becomes now no longer clear whether allowing judicial review sets back the idea of an equal distribution of political power or whether it actually gets us somewhat closer to an equal distribution of political power whether it's just entirely neither here nor there anyway at this point the equal distribution political power does not does not survive as a strong consideration against judicial review also the idea of distributing political power equally which is very attractive when we're talking about a restaurant choice it's not clear that it's as attractive about any other context so think about context in which someone's rights are involved perhaps for instance mine in that case it does not seem that the power to decide should be divided equally between all of the relevant people if it's about my rights it seems like I should get at least some extra say right you may think about it even in some variations on the restaurant on the restaurant case what if for instance I am just I have this serious ongoing conflict with the owner of that nice Italian place now you may think that I have a right not to be put in that situation in which I go to that restaurant and if so it's no longer clear that the right way to decide it is one-person one-vote we're going to we're going to return to this later on there may be also other topics about which it just doesn't seem that one-person one-vote or more generally the equal distribution of political power is a good idea if that so and there are going to be cases for which the rationale the underlying rationale for majority rule that about equal distribution of political power just fails to apply let me remind you that there may be other rationales as well we're just not considering all of them right now okay what is left of thoughts about representation after where we already know that one person one vote and in particular or more deeply something about the equal distribution of political power does not do all the work well you may think that it's really important for a deciding institution to represent those that it governs but now we should ask both how is it that it should represent them and also why if at all is it important that it should represent them one thought here is a pist emic and when i say that it's a bist emic i mean it's about our ways to the truth or ways of finding out what the relevant tools are so may think for instance that it's really important for any institution to represent the governed because you want to have a better somehow more comprehensive view of the relevant facts think about academic committees on some academic committees you want to have a student representative and it's not always clear why you would want to do that but at least one possible rationale is because you want to have the kind of information the kind of insight that will come from someone who is a student or who represents the students right so this is an epistemic kind of justification of representation and once again I think that sometimes it makes perfect sense it's not clear though that it will be helpful here as the thought that when it comes to these specific decisions we want a more representative body like Parliament to call the shots rather than a less one a less representative one like the court and it is one reason for that one reason why it's not obvious that an epistemic justification of representation can help here is that in order to have the epistemic payoffs of payoffs of representations it's not required that representation is present in each and every Junction or in each and every case you're making a decision you if you want to have the different points of views and the comprehensive or more comprehensive information that you get by including more people in the procedure you need to include more people in the procedure that doesn't mean that you need to include more people in each and every part of the procedure and let me remind you that we're now thinking about the huge legislative black box that may or may not include you so it's possible to justify judicial review namely letting a less representative body call at least some of the shot while still reaping all of the payoffs of an more and more comprehensive kind of representative body by having the point of views of others a part of the black box in other areas right not where you allow for judicial review so it's not like I'm saying that this epistemic kind of justification representation never works I just think that to the extent that it does it may be able to use it consistently with allowing for judicial review you may think that there's something symbolic going on and I don't I don't whenever you say that something is symbolic it sort of sounds like you are putting it down I don't I don't mean that at all it's just important to acknowledge what role it can and cannot have so you may think for instance that if you have a governing body that's representative the very fact that it's representative symbolizes something important perhaps it symbolizes something about the equal moral status of the different people including those governed and those doing the governing and that seems like it's a possible way to go there are going to be some problems with thought about about symbolism is doing all of the work but perhaps more importantly the former point applies so there are different ways of making sure that you get that symbolic pair of generating the view according to which or or on perhaps emphasizing the view or expressing your commitment to the view of an equal moral status to those governed and those governing and it's not clear that the only way to do that is to allow for a presentation at each and every point so that this consideration too is that they're very least far from conclusive you may think that there are some other ways in which representation matters but I have to say that it's not exactly clear to me what they would be it's important to keep in mind that representation is one thing and participation is another and we want to we want to distinction we want to distinguish between them at least somewhat clearly one good way of doing it is to think about something like the following example a hypothetical example so we can think about a dictator or perhaps a a kind of dictatorial governing body that includes a few people and we can assume that they are actually very successful in making decisions that represent people's preferences principles hypothetical choices and so on right so the crucial thing though is that though they represent the people the people do not elect them the people do not participate in the discussion the people do not call the shots they don't have any authority but the governing body whether it's a dictator or a governing dictator dictatorial body is representative so with this kind of hypothetical example what we have is a nice distinction between participation and representation this kind of representative dictatorial body is representative but is not participatory it doesn't allow the people to participate and now one thing that we could ask is how happy are we with that kind of with that kind of arrangement and perhaps more particularly to the extent that you care about democracy are you satisfied now are you satisfied because you know the people's voices now it's not the people voice it's the people's voices are represented in government and the shots are being called roughly according to or in in a way that lines up nicely with the majority preferences or maybe the preferences in principle of people in general something along these lines well it seems to me clear that you shouldn't be too happy with it from a democratic perspective because what you want is something like participation or power or authority the crucial thing here is about who gets to call the shot to participate in the discussion but it's not just participate in the discussion it's not a debate club it's who gets to participate in the discussion with an eye to making the decision in a kind of authority power laiden discussion one that culminates in a decision and with the hypothetical example of the representative dictatorial body what you have is although it's of course representative by stipulation it's that body that calls the shots nothing about the people the people have no direct influence they don't have power they don't have authority so when we're talking about participation what we want is what's lacking in this hypothetical example and arguably it's Parliament not the court that's at least the primary location of democratic participation that's where you have representation but now we know that it's not really a representation that we care about is it it's more about participation that's where different voices are heard with an eye to making decisions perhaps that's the crucial advantage of Parliament's over courts it's not about representation it's not clearly that it's about accountability either perhaps to an extent but not mostly it's primarily about participation and so we get the following kind of objection the problem with the addition review or any way one main problem with judicial review is that it violates participation rights people have the right to participate in a democracy the way they do it is by engaging Parliament in all sorts of ways when Judas went when the court strikes down a piece of legislation by Parliament what it does is to annul the product of democratic participation thereby violating the public's participation rights this is an argument that more than one person is made but perhaps it's most famously made by Jeremy Waldron that's that's Waldron right there now I think that this argument the argument about participation actually has some weight but I think that it should be contained shall we say and there are many many points that you can raise here here's one there's more than one way to participate there's certainly more than one way to meaningfully participate you may think for instance that petitioning the court either yourself if you happen to be I don't know a law student who is about to become a lawyer all right but even if you're not if with the aid of the ACLU or some other kind of relevant an NGO petitioning the court may be seen not as a way of challenging Democratic participation but rather is a major way of at least within systems that the black box of which contains something about judicial review so it's not clear that engaging in judicial review should be seen as a as anything but more participation perhaps a different kind of participation then on the other hand and on the other side and let me remind you it's always the question it's always a comparative question we're doing institutional design here we shouldn't have to idealize the view of what democratic participation looks like when we're talking about Parliament's so voting once every few years doesn't sound like a hugely important participatory practice especially since we know that many many millions of people don't do that even when it doesn't take that much effort to do that and also when we know that when you vote you in all likelihood do not make a difference okay maybe there is more than we could do right like writing an op-ed let me tell you doesn't make that much of a difference either and we can talk about other forms of participation by engaging Parliament I don't want to belittle them too much but I do want to do what I do want to do is to have in mind a realistic view of democratic participation visible Parliament and a realistic view of what's going on in courts for instance in constitutional cases and see that it's not at all obvious that the participation that's involved in petitioning the court about the constitutional case is any less respectable or any less worthy of democratic respect than the kind of participation that's a part of normal politics and election for legislators so this is one worry even if we do think that there is an important right to participation it's not clear what the best way of exercising it is and it's particularly it's not clear that judicial review is always antagonistic to it here's another word assume for now that judicial review does indeed infringe on participatory right so I'm giving water on quite a bit of what he wants for free now if so then this is already a very strong consideration against judicial review it's what we call a pro tanto consideration right it's a one piece of weight on the scales against judicial review but we should when when you use the metaphor of of scales and of weight you should check what's going on on the other scale as well so what should we do when really strong considerations are actually in conflict here there's the participatory right on one side but then there can be really other important consideration indeed other important rights on the other what if the legislature legislates a violation of my rights or allows my rights to be infringed or violated in such a case you either let the legislation stand respecting participatory rights but allowing the violation of my whatever it is a right to free speech or else what you do is you engage in judicial review thereby protect my right to free speech and perhaps pay a price in the participatory rights of the majority or perhaps of people in general well if we're talking about different scales and different weights here there is no general answer is to who wins we should just try to weigh and balance the different relevant considerations and it's possible that participatory rights are really important and that they're going to at least sometimes trump the other relevant considerations that's indeed plausible what's implausible is the thought that they will always triumph no sometimes other considerations will be will be at least as important so perhaps in those cases perhaps in those cases the other considerations actually Trump participatory rights notice that all of these stands even if participatory rights are very important and so count initially against visual review it is one way to go here would be to say that the court should have the authority to review legislation when it restricts participation when it sort of goes against the very participatory rights that are supposed to protect it to begin with it's not clear how exactly to delineate such participatory surely my right to vote right so this is your rationale against you should at least allow judicial review of legislation that either prevents me from voting or perhaps that somehow takes away some of the weight of my vote because of zoning laws for things like that maybe also you should allow the court to intervene when it's about free speech or at least when it's about free political speech right because free political speech is both in itself a major form of democratic participation and also a really valuable tool for my ability to exercise my right to vote in a kind of an informed and intelligent way so this is one way to go to at least allow judicial review in the cases in which participation is at issue but once you allow that the question becomes well sure participation is really important and so the court should not intervene too easily but on the other hand when these are matters that curtail participation itself the court should have the authority to review but once you say that you think what weighting participatory stuff is really important it's not the only important thing and it's not necessarily the most important thing so if you want to allow for exceptions that allow the court the authority to judicially review legislation when it compromises participatory rights maybe you should do the same when it compromises other important rights and perhaps other important considerations as well and so what we seem to get at this point is that even if we assume that participation is extremely important and even if we now put to one side though it worries about that how much you participate in a democratic election and whether petitioning the court is itself a form of participation even when I'm giving Walden all of that it still becomes entirely unclear what follows perhaps what follows is not that there shouldn't be any judicial review but that the kind of judicial review we should have should be especially sensitive to participatory right free political speech and perhaps other things that are of this kind or at least as important