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NKU Chase College of Law




We have a plethora of theories about judicial review, including theories about theories, but their foundations require stricter scrutiny. This Essay presents some aspects of the problem through an examination of two important and familiar ideas about judicial review.

The controversy over "noninterpretive" review concerns the propriety of courts' deciding constitutional cases by using extraconstitutional norms. But the theoretical framework has not been well developed and appears to raise the wrong questions about judicial review. Thayer's doctrine of extreme judicial deference to the legislature has received much attention, but his reasoning has been given less careful notice. Thayer's rule rests largely on doctrines of doubtful constitutional standing.

The purpose of this Essay is not so much to answer questions as to raise them-to enlarge the agenda of constitutional theory.


This article is a version of a paper presented to the Constitutional Bicentennial Symposium at the Salmon P. Chase College of Law, Northern Kentucky University, September 19, 1987.

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