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1 results

  • 6 - Weak Review, Strong Rights

  • David L. Sloss, Santa Clara University School of Law
  • Book:
    People v. The Court
    Published online:
    07 August 2025
    Print publication:
    21 August 2025, pp 135-157

  • Summary

    Chapter Six contends that courts should apply a system of weak judicial review to protect individual rights. Most of the rights protected under current constitutional doctrine are included in the Covenant on Civil and Political Rights. The United States is a party to that treaty. Congress has the power to authorize judicial enforcement of those treaty rights. If Congress enacts such legislation, and courts practice constitutional avoidance in cases where judicial enforcement of treaties provides a substitute for judicial enforcement of the Constitution, the net result would be a system of weak judicial review. The proposed system would enable judicial protection for rights that is substantially equivalent to, and in some cases better than, the current system of strong judicial review. Moreover, with weak review, Congress could override judicial decisions with which it disagrees. The option for legislative override is necessary to restore the power of We the People to exercise control over our government, a core structural feature of the Constitution.