DEMOCRATIC OBJECTIONS TO STRUCTURAL JUDICIAL REVIEW AND THE JUDICIAL ROLE IN CONSTITUTIONAL LAW
Bibliographic record
Abstract
This article revisits my argument that structural judicial review – judicial review of those provisions of a constitution that establish the basic structure of government and divide power between the constituent parts of a federation – is vulnerable to the objection from democracy and defends that claim against arguments made by Jeffrey Goldsworthy and others. First, I deny that the democratic objection to judicial review can, by virtue of its commitment to respect for rights, be wielded only against rights review: on the contrary, I argue, it applies where judges have the power to interpret and enforce constitutional provisions or principles that are uncertain in their scope and which therefore require judges to make evaluative judgments in the face of reasonable disagreement. Structural judicial review routinely involves judges’ making, or reaffirming, choices of just this kind. Second, I deny that federal judicial review is immune from the objection either because it constitutes only a weak form of judicial review or because judicial review is a necessary attendant of federalism: on the contrary, federal judicial review requires judges to choose between contested conceptions of federalism in a manner not susceptible to legislative revision. In addition, I argue, there are institutional structures that would allow for the resolution of federal disputes without begging the question at the heart of federalism. Finally, I deny that judicial review of legislative procedures, of requirements establishing an independent judiciary, or of federal anti-discrimination norms (categories identified by Goldsworthy) create practically significant exceptions to my claim.
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How this classification was reachedexpand
Full frame distilled prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. Learned from the 10,348 direct Codex labels and 10,348 direct Gemma labels. Candidate is the union of thresholded teacher heads; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels or direct frontier model labels.
Codex and Gemma teacher scores by category
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.001 | 0.000 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.000 | 0.000 |
| Science and technology studies | 0.003 | 0.004 |
| Scholarly communication | 0.000 | 0.000 |
| Open science | 0.000 | 0.000 |
| Research integrity | 0.000 | 0.000 |
| Insufficient payload (model declined to judge) | 0.001 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; both teacher heads agree on what is shown here.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".