Legitimacy and Reasonability: Reflections on Judicial Review

Public law confronts pressure from legislatures and administrations that vow to reflect majoritarian orientations. Even formally unchallenged democratic institutions operate in a climate of popular impatience with procedural checks and balances. Hence the urgency of revisiting judicial review.
In § 1, a “counter-counter-majoritarian” defense of judicial review is outlined, based on L.R.Barroso’s attribution of a representational function to constitutional courts, on Rawls’s liberal principle of legitimacy and on H.Lindahl’s legal theory.
In § 2, ways of reconciling F.Michelman’s two views of a constitutional court’s mandate – a) remedying “shortfall of consensus” in the polity; b) remedying “occlusions of democratic agency” – are discussed.
In § 3, Rawls’s standard of “the reasonable” is shown to offer a new way of distinguishing a) legitimate ways of interpreting the meaning of constitutional provisions and b) non-legitimate ways of judicially transforming constitutional meanings.