WHO WILL DECIDE ULISSES' FUTURE?

Abstract

This article analyzes Jeremy Waldron’s critique of the connection between constitutional pre-commitments and judicial review. It begins by presenting the "hard core" of this concept, illustrated by Jon Elster through the metaphor of Ulysses and the sirens. It then explores variations of this argument, as adjusted by other constitutional theorists. Within this framework, the article examines Waldron’s critique of the foundations of this theory, which constitutes its central focus. His main objections are: (i) the notion that pre-commitments, by virtue of their democratic nature, justify judicial review is fallacious, as their initial legitimacy does not ensure that their future application will remain democratic; (ii) the abstract nature of constitutional provisions inevitably gives rise to interpretive disagreements, undermining the idea of a neutral or intentional application of pre-commitments; (iii) delegating constitutional interpretation threatens the ideal of democratic self-government, since constitutional conflicts do not involve a choice between rational and irrational decisions, but rather between equally legitimate democratic convictions—raising doubts about whether an unelected minority can impose these pre-commitments. Finally, the article highlights the problem of legitimate authority, which underlies Waldron’s critique.