LAPA Law-Engaged Graduate Student [LEGS] Seminar - Dialogue and Domination: Republicanism and 'Weak-Form' Judicial Review
Department:Program in Law and Public Affairs
Audience:Restricted to Princeton graduate students, faculty, and fellows
Graduate students, fellows, and faculty only, please.
Each seminar features law-related papers or practice job talks presented by graduate students from many disciplines.
Contact Leslie Gerwin, email@example.com
From Mr. Sigalet: "In this chapter I argue that the metaphor of ‘constitutional dialogue’ is innocent of its past normative uses and abuses. Rather than speculating on the implications of the metaphor for a particular constitution I will prove its innocence by connecting it to the arguments of an increasingly important school of political theory called republicanism or neo-republicanism. By conducting a rather high altitude analysis of the relationship between republican political theory and the normative significance of the metaphor I will demonstrate that the metaphor helps to illuminate a republican view of the appropriate relationship between legislatures and courts. It turns out that republican political theory helps to explain the dialogic promise of so-called systems of ‘weak-form’ judicial review. I argue that republican claims show the potential for judicial review to threaten the legitimacy of a system meant to settle disagreements concerning rights. Republicanism does not undermine the legitimacy of the practice of judicial review tout court, but rather demands means by which legislatures can control the deliberative interference of courts with their decision-making concerning rights. I argue that such dialogue inducing formal institutions are not sufficient to guarantee republican dialogue, but must be complemented by practices that contribute to developing a culture of legislatively controlled dialogue. This republican conception of constitutional dialogue entails three normative conditions concerning institutions and practices meant to foster deliberation between courts and legislatures. They must be (1) rule-bound, (2) clear, and (3) direct. I conclude by shifting my focus to the slightly lower altitude task of surveying the kinds of constitutional systems that might be said to feature such a culture of republican dialogue."