A Job for the Judges: The Judiciary and the Constitution in a Massive and Complex Society
This article attempts that task by exploring the elements of institutional choice in constitutional law. Part I takes an overview of the general division of decisionmaking responsibility between the political processes and the courts. It also examines the failures of existing theories to take account of this division of responsibility. Part II identifies two theories of political malfunction – those circumstances in which political processes are subject to significant doubt or distrust and, therefore, prime candidates for judicial review. Part III examines the characteristics – limits, biases, and abilities – of the judiciary and the potential for judicial response to the political malfunctions discussed earlier. It explains why various forms of judicial response are more appropriate for some types of political malfunction than for others. The result is an overview of judicial response which provides insights into what constitutional law is and can be.