A CORE CASE FOR JUDICIAL REVIEW: STRIKING A DYNAMIC BALANCE BETWEEN CONSTITUTIONALISM AND DEMOCRACY

Is judicial review a deus ex machina institution? Commentators disagree on the legitimacy of judicial review in a constitutional democracy. Many scholars who argue for (or against) judicial review have based their claims on democracy or democratic theory, while other scholars have founded their positive (or negative) arguments on constitutionalism or constitutional theory. Based on a general assessment of the literature, this article finds that most scholars have overlooked a core case for judicial review that the central role of judicial review in a constitutional democracy is to strike a dynamic balance between constitutionalism and democracy. Taking three current trends of worldwide development — the global spread of democratization, the global adoption of constitutionalism, and the global proliferation of judicial review — into consideration, the article tries to justify the core case on the basis of necessity, feasibility, and suitability. Accordingly, judicial review is a necessary, feasible, and suitable institution for maintaining a proper balance between constitutionalism and democracy in modern democracies.