Judicial review as deference to our constitutional lucidness

This paper addresses Waldron’s treatment of the pre-commitment analogy (PA) in Law and Disagreement. First, I shall argue, against Waldron, that the PA captures a crucial feature of constitutional activity, which is its institutional lucidness. Constitutional processes can be described as institutionally lucid in three dimensions: sociological, legal and historical. The basic claim is that this lucidness justifies the deference our legal system owes to the constitution and that judicial review of legislation instantiates that deference.
An additional reference to Waldron helps to precise the scope of the argument. Waldron correctly criticizes the PA grounded in the “abstraction” and “ambiguity” of constitutional rights. However, on this point, he misses the enemy. The problem he identifies is not of the entrenchment, but of a technique to formulate rights. A technique that is defective precisely because it does not entrench anything properly speaking.