In order to answer this question, let’s first define the terms.
Representative democracy is a form of government in which the people of the nation elect representatives to make and enforce laws.
Pluralism in government is a system in which there are more than one governing body. In the United States, there are three branches of government: the legislative, executive, and judicial branches. This separation of powers is supported by a system of checks and balances, which prevents one branch from becoming too powerful.
Judicial review is a process of the court reviewing a law that has been passed. The point of judicial review is to ensure that unconstitutional laws are not passed by the legislative branch. The power of the judiciary to review and reject laws is an aspect of checks and balances.
Now, how might someone see judicial review as detracting from representative democracy and pluralism? If people elect politicians they believe will represent their interests, they may not appreciate a court review removing the laws they support. It could lead to the feeling that the representative democratic process does not actually work for the citizen. On the other hand, judicial review might be seen as complimenting pluralism in the sense that it provides a check and balance to the legislative and executive branches. Which side do you agree with more?
Critics of judicial review have regarded it as fundamentally undemocratic. They argue that judicial review effectively means rule by judges, and as these judges, the Supreme Court justices, are unelected, the enormous political power they wield represents an attack on democracy.
Contentious political issues, whether it's abortion or gun rights, should be determined, on this view, by the people's democratically-elected representatives, not unelected judges. Some scholars have even argued that the Supreme Court should be replaced by assemblies made up of ordinary citizens, who will then get to decide what is and isn't constitutional.
But one could argue against this that judicial review is inevitable in a political system, such as the American political system, that is based on a written constitution. And a constitution isn't simply a political document, it's also a legal one, and as such can only reasonably be interpreted by those with the appropriate legal training and expertise, i.e. judges.
Although it is democratically-elected politicians who pass laws, and rightly so, those laws, and the manner in which they are carried out, still need to adhere to the Constitution. And who better to decide this question than the highest court in the land, the Supreme Court of the United States?
Judicial review is the principle, first established at the federal level, that the Supreme Court can disallow laws passed by Congress as unconstitutional. Certainly, the Court's ability to rule laws passed by Congress, which is democratically elected, as unconstitutional is an important limit on the extent of democracy in this country. It is only one of many such limits embedded in the Constitution by the founding generation, who distrusted democracy. In theory, judicial review represents an important check on majority rule, which, although a fundamental principle of a democratic republic, does not necessarily guarantee that the rights of the people will be protected. In theory, if a law was passed by Congress (elected by the majority) that violated the rights of the people, the Supreme Court's power to rule it unconstitutional would be crucial to protecting the rights of the minority. In fact, the judicial review is really the only such protection if a President supports such a measure. In this way, the principle of judicial review could help to preserve the rights of the people that are fundamental to a representative democracy and to pluralism. To put it simply, the Supreme Court would have no meaningful check on Congress without the power of judicial review.
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/judicialrev.htm
Judicial review is a process by which the highest court of the land can examine and ultimately strike down laws made by the legislature, if they are deemed deemed unlawful or in violation of the Constitution.
The process was established following the Marbury v. Madison case (1803), which set the precedent that laws could subsequently be deemed unconstitutional by the Supreme Court.
This on the face of it could lead to the conclusion that judicial review is actually a barrier to democracy, as it prevents democratically elected politicians from passing laws as they see fit, on behalf of their constituents.
However, it is widely accepted that liberal democracies need strong checks and balances in order to limit the power of government. In the case of judicial review, it could be said that the Supreme Court acts as a custodian of the law (and the Constitution) and therefore provides citizens with a further safeguard against a tyrannical parliament.
The idea behind having these checks and balances in place is that rather than stifle or limit the democratic power of the electorate, it actually enhances it. It prevents elected politicians from becoming too powerful or acting with impunity, which should, in theory, lead to a more enfranchised, pluralist society whose rights cannot be easily violated (as they perhaps could be in a country without this legal system).
However, one of the issues which critics have with the relationship between government and the judiciary is its politicization. A great political emphasis is usually placed on the selection of Supreme Court Justices. Even now, the president has stressed the importance of selecting the correct candidates to send to the Supreme Court.
If the justices who perform judicial review are overly political (and too close to the ruling party), the argument could be made that this negates the very purpose of such review—the assumption being that their rulings may fall along partisan lines.
No comments:
Post a Comment