Year: 2004
Type: article
Abstract: Since the 1920s, progressives have flip-flopped on the merits of judicial review at least three times.In the last few years, they have been forging a return toward the anti-judicial review camp, which ironically puts them in line with today's conservatives.The trendy progressive movement against judicial review calls itself "popular constitutionalism" and has at its helm such prominent scholars as Mark Tushnet, Larry Kramer, Richard Parker, and Jeremy Waldon.They contend in varying degrees that people-not judges-are the best arbiters of constitutional interpretation.In his Baum Memorial Lecture on Civil Liberties and Civil Rights, Professor Erwin Chemerinsky demonstrates that popular constitutionalism is exactly the wrong strategy for progressives because it rests on flawed premises and comes to undesirable conclusions.Professor Chemerinsky proposes instead that progressives formulate an alternative vision of judicial review, distinct from that which the conservatives and popular constitutionalists espouse, and in which the courts play a central role.Because history has shown that the way prominent scholars view judicial review today will influence how it is practiced tomorrow, the real danger, Professor Chemerinsky fears, is that popular constitutionalism will undermine judicial review in the long term, creating progressive judges who, in the name of judicial restraint, are reluctant to enforce the Constitution to advance liberty and equality.Progressives attacked the institution of judicial review at the height of the Lochner' era, during the 1920s and 1930s, when the Taft andThis article was originally presented on February 17, 2003, as the second 2002-2003 lecture
Source: bepress Legal Repository
Author: Erwin Chemerinsky
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W1517040341