ABSTRACT
Debates about judicial review, judicial activism and the role of the judiciary within a constitutional regime typically revolve around questions of legitimacy. In the United States, where judicial review is not spelled out explicitly in the Constitution? these questions are especially salient. Even though it has been close to two centuries since judicial power to invalidate an Act of Congress was asserted by Chief Justice Marshall in Marbury v. Madison,3 the fact that that power rests on so thin a textual mandate has served to keep the issue of the legitimacy of judicial review in the forefront of political debate and academic constitutional theory. Because American federal judges hold office for life,4 because many acts of constitutional interpretation have the effect of negating the decisions of bodies more responsive to the electorate than the judiciary, and because these acts rest on an implied power, what Alexander Bickel called the I counter-majoritarian difficulty's has always loomed large on the agenda of the American constitutional theorist and constitutional practitioner. And when particular judicial decisions have only a tenuous connection with the constitutional text or the intentions of its drafters, as with decisions during the 1930s about economic liberty6 and decisions during the 1970s about personal privacy,7 or the run up against the deep-seated beliefs of a vast majority of the public, as with decisions protecting the right to burn the American flat or denying states the ability to sponsor prayer in public schools or granting powerful rights to those who are charged with or suspected of criminal activity, 10 the debates about the legitimacy of judicial review become even more heated and even more important.
