How different are Waldron's and Fallon's core cases for and against judicial review?

Oxford Journal of Legal Studies

Volumn 30, Issue 1, 2010, Pages 49-70

  Tushnet, Mark ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 77955256652     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqq003     Document Type: Article

References (107)

1. Jeremy Waldron, 'The Core of the Case Against Judicial Review' (2006) 115 Yale LJ 1346-406.
2. Richard H Fallon, Jr, 'The Core of an Uneasy Case For Judicial Review' (2008) 121 Harv LR 1693-736.
3. Another way of putting this: elevate the prominence of the conditions and qualifications
4. Fallon (n 2) 1700. ('it is presumptively worse for legislation to be enacted than not enacted, largely because of the threat that legislation might violate individual rights, and...multiple veto points should therefore exist'.); 1705 ('might a society want to create multiple veto points so that governmental action could not occur if either a court or the legislature thought that the action would violate individual rights?'). The latter statement confirms that Professor Fallon regards constitutional review as one of the available veto points.
5. The role the libertarian presupposition plays in Professor Fallon's arguments suggests to me, though perhaps not to other readers, that his argument rests on an understanding of what modern liberal democracies are that places the US experience at the core rather than seeing the United States as merely one among many modern liberal democracies.
6. For this reason I think it mistaken for Professor Fallon to assert that 'the best outcome-based reason to support judicial review is one that Waldron overlooks': Fallon (n 2) 1735. It is not, I think, that Professor Waldron overlooked that reason, but that, as qualified by Professor Fallon, that reason is not significantly different from the (conditioned) reasons Professor Waldron offered against constitutional review, and therefore did not require separate identification and treatment. Throughout this article, I use the term 'constitutional review' to refer to the practice whereby courts are authorized to refuse to give legal effect to primary legislation when in their judgement the legislation violates constitutional guarantees, except when quoting directly from authors who use the term 'judicial review' for that practice.
7. Fallon (n 2) 1733-4.
8. 'Specification' here means the identification of a rights-violation in a particular setting.
9. As I mention in n 12, below, I believe that I share Professor Waldron's general disposition, though on the basis of a different set of experiences.
10. I understand the 'reasonably well-functioning' criterion to mean something like this: Reasonably well-functioning institutions are imperfect, but not systematically so, nor to a large degree. Such institutions will make mistakes identifying and protecting rights, but those mistakes will be random (with respect to both subject-matter and the beneficiaries of rights) and they will not be of a type that leads to a downward spiral of rights-protection in the sense that making a first mistake increases the likelihood that a second, and a third, and so on, will be made. See also below n 70 (noting Professor Fallon's concern that weak-form constitutional review might contribute to the transformation of a nonpathological democracy into a pathological system).
11. Courts in the common law tradition ordinarily explain in some detail the basis for their decisions. Courts in the civil law tradition ordinarily are much less expansive, but constitutional tribunals in many civil law nations have adopted a more common-law like approach to explaining their decisions.
12. Fallon (n 2) 1702 (emphasis in original). I should note that in my view a fair amount of the resistance Professor Waldron's argument has met arises from a rejection of the assumption that legislators and judges are equally committed to good-faith efforts to enforce constitutional rights (or, perhaps more precisely, that there are no systematic differences but only random ones distributed across individuals in those commitments). Rather, critics tend to assume-without evidence, I believe-that judges are systematically more committed to such efforts than legislators. Another basis for rejecting the assumption by scholars of US constitutionalism arises from the view that, whatever might be said of the commitments of members of the national Congress, it is implausible to assume that state legislators, members of city councils, and the like are as committed to good-faith enforcement of fundamental rights as are federal judges, and especially Supreme Court justices. I share that scepticism, but note first that it does not undermine the 'core case' Professor Waldron develops, given the assumptions he makes and that Professor Fallon accepts for purposes of argument, and second that constitutional review in its classic form is not the only institutional mechanism for responding to this federalism-based difficulty. As to the latter, in brief: First, in principle the Constitution could be (and in my view should be) interpreted to give Congress the power to displace decisions by state legislatures and the like whenever Congress has a good-faith and reasonable belief that those decisions underenforce fundamental rights (but to the contrary see City of Boerne v Flores, 521 US 507 (1997) (requiring a showing of 'congruence and proportionality' between congressional legislation aimed at enforcing fundamental rights against state actors and demonstrated violations, which is stronger than requiring a good-faith reasonable belief)), and second, one can reasonably treat the judicial power to invalidate state and local legislation not as constitutional review in the sense discussed by Professors Waldron and Fallon but as an administrative mechanism chosen by Congress for the task.
13. He adds that '[t]his judgment obviously underlies bills of rights that create negative but not positive rights'.I would note, though, the possibility that a nation might have what Cass Sunstein calls constitutive commitments to fundamental rights, including positive rights, that are not expressed in a single document.
14. See CR Sunstein, The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More Than Ever (Basic Books, NY 2004) 62 (defining constitutive commitments as those that are 'widely accepted and cannot be eliminated without a fundamental change in social understanding', and including among them the right to social security).
15. See also E Young, 'The Constitution Outside the Constitution' (2007) 117 Yale LJ 408-73.
16. Such commitments are to fundamental positive rights and, importantly, are found in US law. In a response to Professor Sunstein's suggestion that failing to honour these commitments 'would amount to "a violation of trust", but nonetheless "it is not seriously argued that they are encompassed by anything in the Constitution"', Bruce Ackerman responds, 'It all depends on which Professor Sunstein means by capitalizing "Constitution."'
17. BA Ackerman, 'The Living Constitution' 120 Harv LR 1737-812 (2007), 1753 fn 38 (quoting Sunstein, above, 62).
18. This response, with which I agree, draws such commitments-even in the United States and certainly in nations even more openly committed to positive rights-into the domain of the core cases for and against constitutional review.
19. William Binchy pointed out in comments on an earlier version of this article that the term 'zero-sum' is somewhat misleading because it suggests that the restriction Professor Fallon places on his argument occurs only when one fundamental right is pitted against another of essentially equal value or weight. In fact, as Professor Fallon's arguments make clear, the restriction arises whenever one fundamental right is pitted against another, the argument for whose fundamentality exceeds some threshold of reasonableness. I follow Professor Fallon's usage here, although I sometimes reinsert the term 'reasonable' to emphasize that the restriction arises after a minimal threshold is passed.
20. As indicated below, text accompanying notes (35-37) below, in general I believe that US constitutional doctrine has within it the resources to translate into conventional US doctrinal terms concepts that appear in a somewhat different guise in other modern liberal democratic constitutions.
21. The structure of Professor Fallon's argument suggests that in his view they arise infrequently. He considers the possibility that the courts should decide all rights-claims because zero-sum conflicts occur infrequently and the costs of sorting the few zero-sum cases from the rest are too high, see Fallon (n 2) 1731, but not the possibility that the courts should abstain from deciding any rights-claims because zero-sum conflicts occur frequently and the costs of sorting the few non-zero-sum cases from the rest are too high.
22. I think it worth noting that Herbert Wechsler questioned the result in Brown v Board of Education, 347 US 483 (1954), because as he saw it the case presented a conflict between the associational rights of African-American children and the associational rights of white children
23. See H Wechsler, 'Toward Neutral Principles of Constitutional Law' (1959) 73 Harv LR 1-35, 34 (describing the question posed by Brown as one in which 'the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it').
24. In Professor Fallon's terms, Wechsler saw Brown as presenting a zero-sum problem. Professor Fallon would allow the courts to decide as a preliminary matter whether the claim that it was such a problem was a reasonable one, and to decide the merits only if they find the claim unreasonable.
25. For a recent examination of how different liberal democracies resolve the conflicts between fundamental rights to free expression and fundamental rights to fair trials.
26. see Giorgio Resta, 'Trying Cases in the Media: A Comparative Overview' (2008) 71 L & Contemp Prob 31-66.
27. Professor Fallon may be misled by the structure of US constitutional analysis, where prevailing doctrine treats the equality concern as a mere 'interest' and not as a competing constitutional concern. That results from the particular structure of US constitutional doctrine and holds no general lessons for the cases for or against constitutional review.
28. 487 US 1012 (1988).
29. Fallon (n 2) 1730.
30. For a somewhat more extended discussion of the latter, see text accompanying n 33 below.
31. Fallon (n 2) 1712.('My core case extends to the kinds of fundamental rights characteristically protected in bills of rights and does not necessarily apply directly to "ordinary" liberty rights to freedom from governmental regulation'). I am uncertain about the work done by 'necessarily' and 'directly' in the latter formulation.
32. Within Professor Fallon's scheme, the result would be that constitutional challenges to economic regulatory and redistributive legislation, as zero-sum cases, would automatically be upheld except in quite extreme circumstances (or, perhaps, dismissed as nonjusticiable). But that is the result under contemporary doctrine anyway.
33. Neomi Rao's argument that it would not be a good idea on policy grounds to introduce notions of human dignity into contemporary US constitutional jurisprudence as tools that courts could use to invalidate statutes is not to the contrary because it does not deal with whether such a policy choice would nonetheless satisfy the minimum criterion of reasonableness.
34. 'On the Use and Abuse of Dignity in Constitutional Law' (2008) 14 Colum J Eur L 201-55.
35. Rape-shield laws, whose constitutionality has generally been upheld, present another example of this conflict.
36. See Shawn J Wallach, 'Rape Shield Laws: Protecting the Victim at the Expense of the Defendant's Constitutional Rights' (1997) 13 NYL Sch J Hum Rts 485-521, 497-8 ('Rape shield statutes have been consistently upheld by the courts...[and] [n]o rape shield statute has been found unconstitutional on its face, although there have been cases where courts have held that the statute as applied to the particular facts of a case was unconstitutional'.) So do libel, false-light, and associated invasion of privacy torts, as conceptualized in most European systems.
37. See, eg Von Hannover v Germany, no 59320/00, §§43-81, ECHR 2004-VI (24 June 2004), available at (last accessed 20 January 2010) (holding that Germany courts had failed to provide adequate protection to Princess Caroline of Monaco's right of privacy when they refused to enjoin the publication of photographs of her private activities).
38. Here a point of apparent agreement between Professors Waldron and Fallon deserves emphasis. The core cases both develop deal primarily with constitutional review of legislative decision-making. Professor Waldron's core case against constitutional review does not extend to a reasonably wide swathe of decision-making by executive officials, particularly low-level executive officials such as police officers who, in Professor Fallon's words, 'must frequently make snap, non-deliberative decisions that even they themselves might not endorse after thinking through the implications for individual rights': Fallon (n 2) 1728, n 199. (referring to 'cases in which the legislature has striven conscientiously to determine which of two competing fundamental rights deserves to prevail'). Low-level executive officials might rarely so strive. And, to make the obvious point explicit, much of the constitutional law dealing with criminal investigations and some dealing with criminal prosecutions deals with decisions by such officials, and so is outside the core case against constitutional review (or is clearly within a case for constitutional review predicated on arguments different from those that constitute the core case for constitutional review made by Professor Fallon).
39. Basic Law, art 2(1) ('Everyone shall have the right to the free development of his personality'), art 2(2) ('Everyone shall have the right to life and to physical integrity'). These provisions must be read along with Basic Law, art 20 (1) ('The Federal Republic of Germany shall be a democratic and social federal state'). The term 'social' in art 20 is sometimes translated as 'social welfare', which makes the implications for art 2 somewhat more clear.
40. See, eg Rock v Ireland [1997] 3 IR 484, 499 (SC) ('The protection of citizens from attacks on their person or property...is a constitutional duty which is imposed on the State...'.).
41. For a well-stated version of the argument, invoking the Equal Protection Clause, see Robin West, 'Response to "State Action and a New Birth of Freedom"' (2004) 92 Geo LJ 819-931, 827-28.
42. The Fourteenth Amendment requires that states provide equal protection of the law. Linguistically and historically this means that the state must protect everyone equally against various dangers, most prominently against private violence. To fail to provide equal protection against private violence is to condone the existence of private, violent, and hierarchic relationships, such as the relationship of master to slave: If I can assault, maim, or kill you without fear of state reprisal, but you cannot do likewise to me, then I am literally your master. To fail to provide equal protection against private violence also condones practices such as lynching: If the state permits me to kill you without fear of legal redress, it is not providing you equal protection of the law. Similarly, if the state does not protect me against private violence in the home, sexual or otherwise, it is not providing equal protection of the law. If the state does not equally protect poor or minority communities against private violence, whatever the reason, it is not providing equal protection of the law. If the state punishes perpetrators of crime against African-Americans more leniently than perpetrators of crime against whites, it is not providing equal protection of the law.
43. Upholding against constitutional challenge a statute authorizing a judge or jury to draw adverse inferences from a person's failure to explain his or her possession of contraband (roughly speaking) when arrested, the Irish Supreme Court provided a useful description of its understanding of the judicial role in 'zero sum' cases: [I]n enacting ss. 18 and 19 of the Act of 1984, the legislature was seeking to balance the individual's right to avoid self-incrimination with the right and duty of the State to defend and protect the life, person and property of all its citizens. In this situation, the function of the Court is not to decide whether a perfect balance has been achieved, but merely to decide whether, in restricting individual constitutional rights, the legislature have acted within the range of what is permissible. Rock v Ireland [1997] 3 IR 384 (SC). 'Permissibility' is determined by the application of a conventional proportionality standard. See also Ryan v Attorney General [1965] IR 294, 312 (HC): The Oireachtas [Parliament] has to reconcile the exercise of personal rights with the claims of the common good, and its decision on the reconciliation should prevail unless it was oppressive to all or some of the citizens, or unless there is no reasonable proportion between the benefits which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizen. The Irish Supreme Court endorsed the Ryan approach in O'Callaghan v Ireland [1994] 1 IR 555 (SC). (I thank John O'Dowd for the references.).
44. Or some group of individuals each of whom is already identified or is in principle identifiable.
45. WN Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (Yale UP, New Haven 1946).
46. The view is roughly the one held by those who contend that the US government is a government of negative rather than positive liberty. For a discussion of this view.
47. see, eg DP Currie, 'Positive and Negative Constitutional Rights' (1986) 53 U Chi LR 864-90.
48. See, eg CR Sunstein and A Vermeule, 'Is Capital Punishment Morally Required?: The Relevance of Life-Life Tradeoffs' (2005) 58 Stan LR 703-50 (treating personal security as a right of the same type as the right to be free of cruel and unusual punishment).
49. See, eg C Fabre, Social Rights Under the Constitution: Government and the Decent Life (Clarendon Press, Oxford 2000).
50. Fallon (n 2) 1730. Other standard examples include campaign finance regulation and regulation of sexually explicit expression.
51. See Gitlow v New York 265 US 652 (1925) (upholding New York's criminal anarchy statute).
52. I have argued that experience has shown that it is unreasonable for a legislature to draw the conclusion that mere advocacy of criminal anarchy poses a significant threat to personal security.
53. Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton UP, Princeton 2008) 69.
54. If so, I believe that Professor Fallon would allow robust constitutional review because classic sedition cases 'could [not] reasonably be thought to involve an actual collision of fundamental rights'. Fallon (n 2) 1731. Working with that formulation, I would say that classic sedition cases do not involve such a collision because the fundamental right to personal security is not actually implicated (and not, I emphasize, that there is no such fundamental right).
55. The reason is that sometimes at least regulations of access to the streets and parks is predicated on concern that the demonstrations pose some risk of disorder-a lower risk than the courts have found necessary to justify regulation on that ground, but one that should be adequate to qualify regulation as a reasonable attempt to protect personal security.
56. West Coast Hotel v Parrish 300 US 379, 399-400 (1937).
57. As per n 36, above, Robin West argues that liberal nations and not merely social welfare states must provide protection against private violence.
58. The common assumption that legislatures are better able than courts to enforce social welfare rights, while perhaps accurate, is unnecessary for the argument here; all that is needed is the assumption, which I think uncontroversial, that courts are no better able than legislatures to identify and enforce reasonable specifications of such rights.
59. The model of course is the Irish Constitution, which enumerates directive principles of public policy, expressly made not enforceable in the courts, and contains other judicially enforceable rights. (In contrast, the constitution of the Netherlands makes none of its guarantees judicially enforceable.)
60. See Section 4 for a discussion of other forms constitutional review can take.
61. Lorillard Tobacco Co v Reilly 533 US 525 (2001).
62. Fallon (n 2) 1712.
63. For an early (and accurate) diagnosis of commercial-speech doctrine as a revival of Lochner under another name.
64. see T Jackson and J Jeffries, 'Commercial Speech: Economic Due Process and the First Amendment' (1979) 65 Va LR 1-41.
65. Fallon (n 2) 1712.
66. I note first that in social welfare states legislatures will find it difficult to remain entirely out of the fields covered by social welfare rights (for a discussion of why, see Tushnet (n 45)), second that much turns here on the definitions of the relevant 'fields' adopted by the courts, and third that this effect would disappear were courts to use a formulation usually translated as 'unconstitutionality by omission', whereby complete failures to act are actionable. (discussing the use of this concept in Portugal).
67. I refer here to the 'course of conduct' because I believe that the appropriate unit of assessment is not an individual statute but the combination of statutes and background rules of property and other law that produce the distribution of material well-being in the society. For a brief discussion, see (nn 58-60) below. I should note that I overlooked this question in Tushnet (n 45), although I believe that my analysis there is not inconsistent with one that would take the course of conduct as the relevant unit for constitutional analysis.
68. I take it that this is one reason that modern constitutions empower constitutional courts to define background rights in a manner responsive to constitutional rights. See, eg Const SAfr §39(2) ('When...developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights'.) Note, though, that the US Supreme Court generally lacks that power. For a discussion of the implications of that fact, see Tushnet (n 45).
69. For an interesting example of a court revising the common law because it recognizes a relevant constitutional right in the very same case, see RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd. 2002 SCC 8 [Can] (holding that secondary picketing is not tortious at common law in part because picketing is protected by the Charter's guarantee of freedom of expression).
70. Here too the assumption that legislatures are no worse than courts in making reasonable judgments about what legal rules (best) protect fundamental rights plays a role, though a small one.
71. For a discussion of one example (with ambiguous implications), see Tushnet (n 45) 258-61 (discussing Chaoulli v Quebec (Attorney General) [2005] 1 SCR 791).
72. Fallon (n 2) 1712.
73. W Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Springer, Dordrecht 2005) 107-25.
74. Given the existence of a robust system of constitutional review, legislatures may be deterred from enacting legislation that underenforces fundamental rights, and might enact such laws were the prospect of constitutional review eliminated. Yet, given that same institutional setting, legislatures may enact legislation that underenforces fundamental rights, confident that the courts will invalidate it. For analyses, see Tushnet (n 45) 80-1 (discussing the 'judicial overhang').
75. PA Diller, 'When Congress Passes an Intentionally Unconstitutional Law: The Military Commissions Act of 2006' (2008) 61 SMU LR 281-335.
76. For a brief discussion of federalism as another aspect of the institutional setting in the United States, see note above.
77. Fallon (n 2) 1712.
78. See above note 17.
79. For a description of the continuum that attempts to identify a number of characteristics of each form of constitutional review, see Tushnet (n 45) 25-33. I note that Professors Waldron and Fallon use the terms 'strong form' and 'weak form' in ways related to but different from (and in my judgment less precise than) the way those terms are used in that book.
80. Waldron (n 1) 1354.
81. This emerges from his treatment of the British Human Rights Act 1998 as creating a weak form of constitutional review and of the Canadian 'notwithstanding' mechanism as not depriving constitutional review in Canada of its strong form: Under the Human Rights Act, Professor Waldron says, a judicial declaration of invalidity has 'the effect' of authorizing a minister 'to initiate a fast-track legislative procedure': This is not, however, an immediate legal effect. In contrast, a decision by the Canadian Supreme Court that a statute is inconsistent with the Charter does have immediate legal effect, until it is displaced by the use of the notwithstanding mechanism. Professor Waldron suggests that the Canadian system might be one of weak form review were the notwithstanding mechanism to be used with some frequency. ('In practice...the notwithstanding clause is rarely invoked. Thus, in what follows I shall count the Canadian arrangement as a form of strong judicial review'.). I think this a (small) misstep on Professor Waldron's part, but as we will see it does bring his position even closer to Professor Fallon's. See text accompanying n 76 below.
82. See Fallon (n 2) 1734 ('Under conditions of reasonable disagreement, democratic institutions should not be too disabled from making periodic reassessments of where and how to strike the balance in weighing the comparative risks and moral costs of the over-and underenforcement of fundamental rights'.). He observes, though, that this preference is contingent on the assumption that weak-form constitutional review in a nonpathological society would not contribute to the development of disturbing pathologies.
83. Which is not in bicameral legislatures the same as a simple-majority decision-rule.
84. Some constitutional systems use such a decision-rule for amending the constitution.
85. R Dixon, Designing Constitutional Dialogue: Bills of Rights and the New Commonwealth Constitutionalism (SJD dissertation, Harvard Law School 2008).
86. Some of the themes in the dissertation are previewed in R Dixon, 'Creating Dialogue about Socioeconomic Rights: Strong v Weak-form Judicial Review Revisited' (2007) 5 Int'l J Con L 391-418.
87. See R Dixon, 'A Democratic Theory of Constitutional Comparison' (2008) 56 Am J Comp L 947-97, 967 ('Capacity constraints of this kind will mean that there will be little space for legislative majorities to prioritize rights-based claims advanced by a relatively small minority, even if the constitutional culture would generally accept the validity of those claims'.).
88. Neither Professor Waldron nor Professor Fallon presents his arguments as ones about specific constitutional systems within the larger class of reasonably well-functioning modern liberal democracies. The relevant question, then, is not whether contemporary US constitutional law recognizes fundamental rights to human dignity, personal security, and social and economic rights, but whether it is reasonable (in such democracies) to characterize such rights as fundamental. The fact that many such democracies do so is perhaps enough to establish reasonableness. I sketched above arguments supporting the reasonableness of characterizing personal security as a fundamental right within US constitutional law. See text accompanying notes 35-37 above. I believe that I could so the same for human dignity and, with somewhat more effort, social and economic rights. As to the latter.
89. see Gary Peller and Mark Tushnet, 'State Action and a New Birth of Freedom' (2004) 92 Geo LJ 779-817 (arguing that contemporary state action doctrine in the United States assumes that social and economic rights are fundamental).
90. Fallon (n 2) 1701, 1702-4.
91. Section 3 suggests that doing so is a mistake because it suggests that the domain over which the core case for constitutional review operates is more extensive than it actually is.
92. Fallon (n 2) 1703.
93. The argument here reminds me of a passage in John Hart Ely's Democracy and Distrust (Harvard UP, Cambridge, MA 1980) 48.
94. Quoting P Roth, The Great American Novel (Holt Rinehart & Winston, New York 1973) 19.
95. Ely prefaced his discussion of natural law as a basis for judicial decision-making with an extract from Philip Roth that is applicable as well to discussions of what rights we actually have: 'Well, what may seem like the truth to you...may not...seem like the truth to the other fella, you know'. 'THEN THE OTHER FELLOW IS WRONG, IDIOT!' (ellipses added).
96. I should note that Professor Fallon's analysis here does not disagree with Professor Waldron's assumption that people are in the Rawlsian conditions of justice because Professor Fallon's focus is not on disagreement over matters of fact and value but on the grounds people have for the positions that they take on such matters. All I claim here is that a person's ability to sustain the position that others reasonably reject the epistemic grounds on which his or her judgments on matters of fact and value rest is extremely fragile.
97. Or, perhaps, that while my method is reliable, I have made a mistake in the course of using it, and that she will not be able to show me where I went off the tracks. Why the latter condition might exist poses a bit of a puzzle, and although I have some ideas about how it might be solved (by invoking ideas about motivated reasoning), I refrain from relying on it as an important part of my argument.
98. I draw here on my own experience in such discussions, with students and with academic colleagues.
99. Or, as a cosmopolitan, the systems of modern Western liberal democracies. For criticism by Professor Waldron of New Zealand's constitutional system because of 'the gradual accretion of power in the executive', which has diminished parliamentary deliberation and which may take New Zealand out of the category of nations as to which the core case against constitutional review applies.
100. see J Waldron, 'Compared to What? Judicial Activism and New Zealand's Parliament' (2005) New Zealand LJ, 441-5, 445.
101. Roughly, liberals who are something like (hard or soft) libertarian liberals.
102. Again roughly, more social-democratic liberals.
103. For a relatively early expression by Professor Waldron of discomfort with the denials of fundamental rights that occur as a result of the way in which background rights are distributed.
104. see J Waldron, 'Homelessness and the Issue of Freedom' (1991) 39 UCLA LR 295-324.
105. Here I would describe Professor Waldron as still a colonial attuned to the imposition of imperial power-and me as still holding on to at least some of the commitments I had as a member of the 'New Left'.
106. In an earlier scholarly generation, this conclusion would have been described as a 'critical legal studies' one, and I would not reject that label even today.
107. The ungrammatical form of this saying is idiomatic.