Judicial review without rights: Some problems for the democratic legitimacy of structural judicial review

Abstract

This article addresses an issue overlooked in most of the literature on judicial review: the legitimacy of judicial review of a constitution's federal and structural provisions. Debates about the legitimacy of judicial review - at least as conducted throughout the Commonwealth - are usually focussed on rights. These debates appear to assume that the power of courts like the Australian High Court and the Canadian Supreme Court to interpret and enforce federal and structural provisions is unproblematic. This article tests that assumption and concludes that those who hold democracy-based objections to constitutional rights should seriously reconsider, and perhaps oppose, federal and structural ..