Government With The People

In his bold new book, Christopher L. Eisgruber argues that constitutionalism, and its servant, judicial review, are a means for the people of our democracy to exercise their right to govern themselves. This review emphasizes the importance of Eisgruber's new answer to Alexander Bickel and the counter-majoritarian difficulty. Eisgruber responds to Bickel with a rejection of majority rule, as inconsistent with true democratic principle. This review essay probes the vehicle by which Eisgruber seeks to situate judicial review in a robust democratic system, the principle of impartiality. Impartiality - an alternative to majority rule - is the government's obligation to maintain some effective mechanism for responding to the interests of all persons, and judicial review is that mechanism. The review questions the very broad role that this book gives to courts in answering moral questions, and suggests that only one type of moral question is appropriate for the judiciary to resolve: whether a particular government act is consistent with principles of justice in a free society. Notwithstanding some critique at the margins, the review applauds Eisgruber's effort to understand our democracy not only as government of the people and by the people, but also as government for the people.