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Between Judicial And Legislative Supremacy: A Cautious Defense Of Constrained Judicial Review, Alon Harel, Adam Shinar

Alon Harel

This Article explores and evaluates theories that we label “theories of constrained judicial review.” These theories, which include popular constitutionalism, departmentalism, and weak judicial review, challenge both the constitutional supremacy of courts and adopt an intermediate position that grants courts a privileged but not supreme role in interpreting the Constitution.

To evaluate such theories, this Article develops both a negative and a positive argument. It criticizes the existing justifications of constrained judicial review and provides a new justification for such theories. More specifically, we argue that the ultimate justification for constrained judicial review cannot be grounded in instrumentalist or consequentialist …