The Politically Powerful and Judicial Review

Aaron Tang, Rethinking Political Power in Judicial Review, __ Cal. L. Rev. __, (forthcoming 2019), available at SSRN. Fred O. Smith, Jr. Courts and commentators have long debated the proper role of judicial review in democracies, particularly the question of how deferential courts should be when determining whether to uphold legislation. Much constitutional adjudication is devoted to understanding phrases that are reasonably susceptible to various meanings, even when history and precedent are consulted. In those situations, how certain should jurists be that their interpretations of constitutional phrases or terms are correct before they vote to invalidate democratically enacted legislation? At least two facts drive and complicate the answer to this question. First, we live in a land where the people purportedly govern themselves; there must be some limitations on the ability of unelected judges to invalidate legislation. Second, we live in a land where…

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