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by emodendroket 3058 days ago
Judicial review was invented by Federalists specifically to subvert Jefferson really. It's in some sense an antidemocratic institution.
2 comments

> Judicial review was invented by Federalists specifically to subvert Jefferson really.

Judicial review is simply the concrete manifestation of two things express in the Constitution:

(1) the judicial power regarding cases and controversies arising under the Constitution, laws, etc., and

(2) The Constitution’s express limits on what laws Congress has the power to pass.

It's anti-democratic in the sense that Constitutionally-limited government is itself anti-democratic, in that the electre representatives of the people are denied the unlimited power they would have in a parliamentary supremacy model, but not in any other sense.

I don't like treating the development of ideas like they just sprung from the ether devoid of masters or historical context. Certainly it can be seen as flowing from those principles, but it came to exist in a particular circumstance -- namely, when Federalists thought raving Jeffersonian Democrats were going to ruin the whole republic with too much democracy and invented a legal theory that said they could throw out their laws.
This is my whole point, it's a messy system. You can weigh the Electoral College and Supreme court then, decide which one is more anti-democratic?
Why do I have to choose? Both are in fact intended to be anti-democratic. Our collective admiration for the Founding Fathers makes it hard for us to wrap our heads around this, but it's reality -- the Constitution is largely a document intended to limit, not encourage, popular sovereignty.