In Defense of Legislatures

It is not every day that a scholar stoops to defend legislatures. Oh sure, lots of political theorists rush to the defense of democracy in the abstract, but they often have little to say about actual democratic practice. By contrast, empirical political scientists (and “positive political theorists”) have lavished attention on the institutions of democratic governance such as legislatures (particularly Congress). But even in their admiration for the functionality of legislatures, it is hard to find much genuine praise. Of course, the general public’s view of legislatures, and particularly Congress, is one of nearly undiluted contempt. Although most view democracy as a good thing, legislatures are more likely to be regarded as a necessary evil that should be kept under a watchful eye. Given this context, Jeremy Waldron’s efforts to defend legislatures as a positive good is extremely welcome. More particularly, Waldron is concerned with developing a vision of liberal democracy separated from the legal constitutionalism of the American model. If we have at least recognized the tensions between legal constitutionalism and democracy, Waldron suggests, we have still failed to appreciate the additional tensions between legal constitutionalism and liberalism and the related affinities between liberalism and democracy. The two works under review are motivated by a very concrete political debate over the proper scope of judicial review in a liberal democracy. Although a recurrent subject of political debate in the American context, the issue has taken on a particular urgency in Britain where the practice of judicial review is making gradual headway. This political context imparts a radical edge to Waldron’s arguments that is missing from most American debates in constitutional theory over judicial review. Waldon’s liberalism is characterized by legislative rather than judicial supremacy, and he flatly