Dialogue and Judicial Review

This article argues that most normative legal scholarship regarding the role of judicial review rests upon a descriptively inaccurate foundation. The goal of this article is to redescribe the landscape of American constitutionalism in a manner vastly different than most normative scholarship. At times this article slips across the line into prescription, but by and large the task is descriptive. The idea is to clear the way so that later normative work can proceed against the backdrop of a far more accurate understanding of the system of American constitutionalism.

This article proceeds in three separate parts. Parts I and II argue that the very premises of the countermajoritarian difficulty are faulty. Part I challenges the basic notion that courts are countermajoritarian. Part II rejects the underlying premises of the countermajoritarian argument. Part III is a redescription of the landscape of American constitutionalism, one in which courts are seen as promoters of, and participants in, a national dialogue about the meaning of the Constitution.