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06/28/2016

Evan Bernick: Reason's Republic
Michael Ramsey

Evan Bernick (Institute for Justice) has posted Reason’s Republic (NYU Journal of Law & Liberty) on SSRN. Here is the abstract:

Judicial review matters. Although a number of scholars have endeavored over the years to demonstrate that the courts offer only a “hollow” hope to advocates of significant social change, courts remain the last hope of legal redress for victims of unconstitutional government conduct. To amend Justice Robert Jackson’s oft-cited opening statement at the Nuremberg trials, judicial review can serve as a means of ensuring that power offers a tribute to reason — that particular exercises of government power are consistent with the rational principles set forth in our Constitution. When judges fail to give effect to constitutional limits on government power, people may be deprived of their liberty, their property, and even their lives arbitrarily — for no better reason than that the holders of political power will it to be so. Given the gravity of the stakes, it is of the utmost importance that judicial review be performed properly. And it is unsurprising that no end of accounts of how judicial review should be performed have been put forward.

Professor Tara Smith’s new book, Judicial Review in an Objective Legal System [Ed.: available here], stands out in a crowded field because of the boldness of its central claims and the elegance and persuasiveness of the arguments she advances in support of them. Smith contends that objectivity in the performance of judicial review is both possible and necessary — that judges can and must arrive at accurate knowledge of what our Constitution means and hold government officials to its terms. Absent objectivity, Smith argues, the rule of law established by the Constitution gives way to the rule of men: Government power is put in the service of will rather than reason, and might trumps individual rights. Drawing upon the twin disciplines of epistemology and political philosophy, Smith synthesizes an approach to judicial review that is tailored to ensure that we live under “a government of laws, and not of men.”

In this essay, I will begin by summarizing the principal features of Smith's account of judicial review; proceed to consider several potential objections to her proposed approach; and conclude by applying Smith’s approach to three areas of constitutional law that are in desperate need of a dose of objectivity.