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According to Professor Christopher Eisgruber, judicial review of the sort embedded in United States constitutional practice is a practical mechanism for implementing the Constitution's commitment to self-government. "The justices ... make a distinctive contribution to representative democracy" because they are "better positioned [than elected officials] to represent the people's convictions about what is right." Judges can articulate "a conception of justice with which Americans in general [can] plausibly identify themselves. "

I will focus here on two themes in Professor Eisgruber's argument. The first theme can be found in many works of constitutional theory - the construction of a strong opposition between the supposedly debased behavior of elected representatives and the supposedly more elevated behavior of judges. The differences in behavior are said to arise from the differences in incentives on actors in each institution. Elected representatives pander to get re-elected, while judges simply want to be remembered "as having performed their jobs well." In Part I of this Review-Essay, I argue that this opposition is overstated in two ways: First, there are indeed policy domains in which representatives do have incentives to pander, such as with respect to "pork barrel" legislation aimed at delivering specific material goods to their constituents, but judges have generally refrained from intervening in these policy domains. Second, elected representatives have incentives to act according to principle, the principles to which a majority of their constituents may adhere. In short, Professor Eisgruber's defense of judicial review makes most sense precisely in policy domains where courts do not operate, and makes least sense in domains where they do.

The second theme emerges from Professor Eisgruber's distinction between comprehensive rights, which call for "an assessment of an entire system of social interaction," and discrete rights that "prescribe[ ] specific forms of government actions." Professor Eisgruber argues that judges should be cautious about enforcing comprehensive rights. Here, I argue in Part II, the underlying concern is with the topic that United States constitutional theorists regard as vampires do crosses: the possibility of using the Constitution to enforce social welfare rights. But, Professor Eisgruber overlooks the fact that sometimes courts enforce traditional rights - against limits on free expression and against discrimination - in ways that show that apparently discrete rights are indistinguishable from comprehensive ones. If courts can enforce these discrete-comprehensive rights, perhaps they can enforce social welfare rights as well, particularly when we expand our understanding of the possible forms that judicial review can take.

Publication Citation

37 U.S.F. L.Rev. 63-87 (2002)