文章基本信息

标题：Why Liberty Judicial Review Is As Legitimate As Equality Review: The Case Of Gay Rights Jurisprudence
本地全文：下载
作者：Carlos A. Ball
期刊名称：Journal of Constitutional Law
印刷版ISSN：1521-2823
电子版ISSN：1942-8561
出版年度：2011
卷号：14
期号：1
页码：1
出版社：University of Pennsylvania Law School
摘要：Although legal commentators these days rarely question the legitim acy of judges engaging in judicial review based on equality grounds, judicial review on substantive due process grounds remains highly controversial. One of the principal reasons for this legitimacy disparity is the view that substantive due process calls on judges to incorporate their personal views and moral values into the constitutional analysis in ways that equality review does not. This Article introduces the concept of "equality's dependence" to explain how value judgments that fall outside of egalitarian considerations must be incorporated into the analysis to give the concept of equality its normative bite. The Article also uses gay rights constitutional cases to question the legitimacy disparity between liberty and equality review by showing how judges make normative judgments in equality gay rights cases that are surprisingly similar to the ones they make while engaging in substantive due process review. These similarities undermine the view that equality is a more neutral or "self-contained" constitutional norm than liberty, one that allows judges to decide cases without bringing to bear their normative values regarding the underlying moral and policy issues raised by the litigation. The Article also uses gay rights cases to explain why judicial review on liberty grounds can play a role in reinforcing democratic processes that is as salutary as that played by equal protection review. In addition, the Article points to examples from gay rights constitutional litigation to question the widely held view that the striking down of legislation on substantive due process grounds inevitably imposes greater limitations on legislative discretion than does the voiding of laws on equality grounds. The Article's ultimate claim is that if judges and legal commentators are generally comfortable with the idea of courts measuring state action against constitutional principles of equality, then they should also be generally comfortable with courts doing the same with constitutional principles of liberty.