Two Arguments Against Judicial Review

Is it just to give unelected judges the ability to make moral and political decisions on behalf of a community, despite the fact that the community has no active role deciding whom these judges are? Jeremy Waldron is one of many adversaries of judicial review; subsequently he does not think that unelected judges should be permitted to make political or moral decisions on behalf of the community (Waluchow Constitutions as Living Trees 534). I disagree with Waldron and side with Wilfred Waluchow, who believes that in these circumstances, society as a whole is “well served by the judiciary” (Waluchow, Constitutions as Living Trees 566). I will begin by presenting two arguments against judicial review. The first argument is referred to in …show more content…
The first argument is titled “Judges as Platonic Kings” (Waluchow, Constitutions as Living Trees 543). This relates to the power that the judiciary holds in comparison to legislators or ordinary citizens (Waluchow, Constitutions as Living Trees 543). Though judicial review in Canada is considered ‘weak’, judges still the authority to invalidate laws (Waluchow, Charter Review). Considering this, adversaries, like Waldron conclude that judges are not qualified to hold such power (Waluchow, Constitutions as Living Trees 543). Waldron and others who oppose judicial review explain that judges “are no more competent than legislators, or the citizens they represent to deal with issues of morality and public policy” (Waluchow, Constitutions as Living Trees 543). This is not disputing the fact that judges have a vast sum of knowledge regarding the law, but rather the notion that judges are not experts in the other aspects that accompany judicial review, such as morality or public policy (Waluchow, Constitutions as Living Trees 543). Since judges are not experts in these capacities, society should stay away from “systems under which a few weathered heads in chambers are allowed to substitute their judgments for those of a great many representative heads” (Waluchow, Constitutions as Living Trees 543). Waldron indicates that alternatively, there should be a system based on “majoritarian decision-making” (Waluchow, Constitutions as Living Trees 567). Obviously, this system stems from Waldron’s belief “that the greater the number of people of varying backgrounds, knowledge bases, perspectives … working on a complex social problem, the greater our chances of arriving at well thought out, reasonable solutions upon which agreement can be based” (Waluchow, Constitutions as Living Trees 543). This belief also stems from