My colleague Alon Harel (visiting Chicago from Hebrew University of Jerusalem) has a new book out called “Why Law Matters,” the second half of which is a normative, non-consequentialist, argument for why we should have entrenched constitutions and judicial review. (A position that is taken for granted by most Americans, but not by everyone.)
In a nutshell, the argument works from the premise that there’s a right to due process, which includes the right to a hearing. By analogy, Harel argues that there’s a process value in constitutionalism and judicial review. Just as it’s good to give people a chance to be heard even if the hearing doesn’t alter the outcome, it’s better for rights to be enforced as a matter of duty — by constitutionalism and judicial mandate — even if the legislature might have done the same thing anyway.
I found this argument fascinating, and thought-provoking, especially because it proceeds on such different lines than American debates about judicial review and constitutionalism normally do. Two additional observations:
First, from an American point of view there’s something backwards about the way this argument proceeds. Harel starts from the premise of due process, and derives from it the value of written constitutions. The conventional American approach would be to start with our Constitution, and derive from it a right to due process. Figuring out which rights and institutions should be assumed as premises and which ones should be derived as conclusions is an important move that many people don’t think about.
Second, while Harel’s book mostly assumes a regime of judicial supremacy, I think it is equally consistent with a narrower regime of departmentalist judicial review. Indeed, the deep connection between constitutional judicial review and the individual right to due process helps to reinforce the idea that judicial review can be limited to the rights of the parties before the Court. This was the topic of my first law review article, and so of course it still remains a hobbyhorse of mine. It seems to me the due process analogy could also support strict personal standing requirements. Those aren’t Harel’s conclusions, but they could be. Maybe they should be.
Anyway, I thought it might interest those who want a new perspective on these issues.