Populist Natural Law (Reflections on Tushnet's "Thin Constitution")

Constitutional review is the activity of measuring action choices of governments against a pre-existing set of publicly known or ascertainable, "higher" norms for the conduct of government. Anyone can do it: chief executives pondering vetoes or preparing state messages; legislators contemplating legal change; police chiefs reviewing department manuals; school board members debating curriculum guides; city planners routing highway expansions; citizens lobbying and pundits castigating any or all of the above; dinner partners talking politics; candidates running for office; voters turning out rascals. "American-style judicial review," let us say, is constitutional review conducted by a nonpopular, unelected, life-tenured body, whose decisions, considered legally binding on other officials, are not reversible by any other set of political actors, except in extraordinary political mobilizations under rules deliberately designed to keep them few and far between. "Popular government," by contrast, is lawmaking and administration by officials replace- able in popular-majoritarian elections over relatively short spans of two, four, or six years.

Mark Tushnet's Taking the Constitution Away from the Courts enters a longstanding American debate over whether American-style judicial review ofthe lawmaking and other acts of popular government (hereafter just "judicial review") is a desirable feature in our political arrangements.