Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System

Extract

Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System. By J. Mitchell Pickerill. Durham, NC: Duke University Press, 2004. 208p. $74.95 cloth, $21.95 paper.

J. Mitchell Pickerill's richly layered book shows the possibilities and limits of “constitutional deliberation” in Congress, defined as “reflection and debate over the scope of federal powers under the Constitution in the context of legislation” (p. 11). Pickerill says that such institutional introspection is rare until Congress is confronted with activist majorities on the Supreme Court, as witnessed in the beginning and end of the twentieth century. But even when using constitutional deliberation to rescue stricken laws and protect future ones, Congress incorporates, rather than “overrides,” the latest judicial doctrine on the proper balance of power between the federal government and the states. He compares the use and specter of judicial review to a presidential veto and concludes that such Congress–Court dynamics show bargaining and compromise. However, interpretive equality is not necessary in this view of a healthy separation-of-powers system.