Carolene Products Redux: An Argument for Judicial Review of Legislation, Against the Future Prejudice of Discrete and Insular Minorities

John Crook

Abstract


Footnote four of US Supreme Court Justice Stone’s judgment in Carolene Products sets out a counter-majoritarian safeguard justification for judicial review of legislation. Jeremy Waldron’s so-called ‘core-case’ against judicial review of legislation is premised upon certain assumptions, without which Waldron himself concedes his arguments would not be sufficient. Waldron assumes that in liberal democracies most members of society and most of its officials are committed to the idea of individual and minority rights. He argues that it follows from this that the justification for judicial review set out in Carolene Products footnote four does not apply. This assumption underestimates the potential for future prejudice of discrete and insular minorities in liberal democratic states. Contra Waldron, I suggest that there is no contradiction in noting our capability of moral reasoning, which makes us worthy right-bearers, and our moral fallibility, which is the basis for judicial review of legislation. Evidence suggests we should be pessimistic about whether we can reliably fulfil our moral capability. If
legislatures may not perform their functions in accordance with right reason, we should utilise constitutional rights and judicial review of legislation as a safeguard to minimise error.

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