Democratic theory and constitutional law
emaltz at CRAB.RUTGERS.EDU
Wed Mar 17 11:41:01 PST 1999
The discussion of the process by which Louisiana judges are selected
points up the fallacy of seeking to tie constitutional theory to democratic
theory. As I have argued at length elsewhere, the reason that judges are
bound to follow legislative judgments is not dependent on the process by
which legislators and judges are selected. Rather, courts are generally
required to respect legislative judgments simply simply because
legislatures generally rank higher than courts in the
constitutionally-established hierarchy of government decisionmakers.
Courts are entitled to ignore legislative judgments only when they are
trumped by the judgments of institutions ranking still higher in the
hierarchy of authority--the drafters and ratifiers of relevant constitutions.
I recognize that this is not an orthodox view of constitutional theory.
However, for those of you who focus on democratic theory, I pose the
following question--should legislative judgments have received less
deference in the pre-Reynolds v. Sims era?
More information about the Conlawprof