The Democratic Character of Judicial Review

Eugene V. Rostow
1952 Harvard Law Review  
A THEME of uneasiness, and even of guilt, colors the literature about judicial review. Many of those who have talked, lectured, and written about the Constitution have been troubled by a sense that judicial review is undemocratic. Why should a majority of nine Justices appointed for life be permitted to outlaw as unconstitutional the acts of elected officials or of officers controlled by elected officials? Judicial review, they have urged, is an undemocratic shoot on an otherwise respectable
more » ... e. It should be cut off, or at least kept pruned and inconspicuous. The attack has gone further. Reliance on bad political doctrine, they say, has produced bad political results. The strength of the courts has weakened other parts of the government. The judicial censors are accused of causing laxness and irresponsibility in the state and t The substance of this essay was originally given in talks before The Club in New Haven and the Yale Law School Alumni Association of Boston during the spring of 1952. While a few references have been added for the sake of clarity, the paper has been left essentially in the lecture form. I am deeply grateful to several friends who criticized a draft. 2 Many writers have distinguished the authority of the Supreme Court to deny effect to an unconstitutional act of the Congress or the President from its duty under Article VI to declare unconstitutional provisions of state constitutions or statutes, although Article VI declares even federal statutes to be "the supreme Law of the Land" only when made in pursuance of the Constitution. HoLmEs, Law and the Court in COLLECTED LEGAL PAPERS 291, 295-96 (1920); JACxSON, THE STRUGGLE FOR J nICIAL SUPREMACY 15 et seq. (194x); TUAYER, The Origh and Scope of the American Doctrine of Constitutional Law in LEGAL ESSAYS I, 35-41 (1908) ; THrAYER, JoHN MARsHrALL 61-65 (igoi); HAINEs, THE A.EPaCAN
doi:10.2307/1336837 fatcat:trhwmhtew5bkbho5pew6btg5p4