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Respecting the Democratic Process: The Roberts Court And Limits on Facial Challenges

By William E. Thro
November 07, 2008
Judicial review—the ability of the courts to invalidate a law because it is contrary to the state and/or federal Constitutions—is the power to nullify the results of the democratic process. “A ruling of unconstitutionality frustrates the intent of the elected representatives of the people.” If, as Tocqueville suggested, every political question becomes a judicial one, there is a real possibility that judges will become a “bevy of platonic guardians.” Instead of focusing on “the provisions of our laws rather than the principal concerns of our legislators,” courts may attempt to give substance to individual desires or aspirations. Rather than invalidating statutes only when contrary to the text or structure of the Constitution, judges may strike down laws simply because the policy choices expressed are “uncommonly silly.” Embracing “a myth of the legal profession’s omnicompetence that was exploded long ago,” the judiciary micro-manages government departments...