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32 Harv. J. L. & Pub. Pol'y 5 (2009)


At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and values, it is also true that some values have been homogenized, not by judicial review, but by the ratification of the Constitution, which is the supreme Law of the Land. True, it is a basic assumption of federalism that local communities may have different values, but it is also a basic assumption of federalism that the national Union is committed to some shared values, that separate communities are bound by some shared laws, and that there were and are reasons for America's distinct communities to come together, to form - in the words of the Preamble - a more perfect Union.

So, how should the conscientious federal judge, or American citizen, go about trying to find the place where responsible exercise of the judicial power of the United States ends, and unwarranted, offensive, intrusive, homogenizing overreaching begins? Certainly, the line will not always be clear, and there is no point in pretending otherwise. In this short essay, it is suggested that the judicial philosophy of the late Chief Justice, William Rehnquist, provides some help to those who take up the task. It is also suggested that, as Rehnquist appreciated in several of his decisions, judicial review of local legislation is sometimes both helpful and necessary to the task of protecting the institutions, groups, associations, and communities that generate, nurture, test, express, and advocate for the local values and norms that such review is often said to threaten. Put simply, to the extent we care about values-pluralism, judicial review can be a friend, as well as a foe.


Reprinted with permission of Harvard Journal of Law and Public Policy.



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