Judical Review And What It Means In A Democracy

1530 words - 6 pages

IntroductionThere is often a level of tension between judicial review and democracy.Critics of the judicial system believe that the courts too often invade thedomain of legislative politics, deciding instead of reviewing.Paradoxically, in some circumstances the constraints which courts representfor legislatures may actually empower politicians. In particular, whenrepresentatives have to deal with highly sensitive and divisive issues, suchas abortion, gun control, or crime problems, judicial review may prove to bea useful instrument for conflict management. At its core, the purpose ofjudicial review is to make sure that policies created to deal with suchissues are not contrary to the rule of law.Numerous studies regarding the separation of powers in American democracyfocused on constitutional-level conflicts between Congress and thepresident, but there has also been a great deal of focus in the past severaldecades regarding the relationship of the courts and the administrativestate on democracy. "There is good reason for this shift of emphasis: theerosion of political parties and the emergence of divided government as aregular feature of American politics since 1968 have enhanced the value ofthe bureaucracy and the judiciary as forums for ordinary policy making"(Clayton 843). The argument has also been presented that judges have usedtheir powers of statutory review to impede the decisions and policy agendasof elected officials. Political and social scientists alternately declarethe judiciary or the elected officials to be the victims in the situation.In reality, the democracy to which they are supposedly committed is what istruly victimized.The Role of Judicial ReviewIn most democracies of the world, parliaments and legislatures arerestrained by constitutional courts (or supreme courts). When electedmajorities make legislation, they must respect the content of fundamentallaws, whose precise meaning is fixed by the reading that a group of judgesmakes of the constitution. The main reason for judicial review is thatindividual rights are considered more basic than the will of any legislativebody. Therefore, it is assumed that the rights of citizens are beyond simplemajorities. Individual rights are safeguarded against possible abuses by thelegislative and executive branches. It is supposed that rights cannot beproperly guaranteed by the same institutions that have the capacity toviolate them.Often, the power of non-elected judges serves as a target for majorcriticism, especially from the advocates of a purely procedural vision ofdemocracy. According to such thinking, when legislative bodies are theresult of free and democratic elections, they should have full authority tomake laws. If all citizens have enjoyed an equal right to participate and toexpress their preferences in selecting representatives, then the authorityof the latter should not be limited. There should be no constraints on thecontent of legislation. Judicial review should only be...

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