The Role of Courts in a Democracy (original) (raw)
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European Political Science, 2008
Understanding of the relationship between constitutionalism and democracy among legal and political philosophers reflects an idealised account of the US constitution and the nature of judicial review. This view is normatively and empirically flawed. The US constitution is built on pre-democratic assumptions and its counter-majoritarian checks and balances are largely regressive, benefitting privileged minorities over the underprivileged. By contrast, ‘actually existing democracy’, involving competing parties and majority rule, is constitutional in its process and effects, treating all with equal concern and respect, upholding rights and maintaining the rule of law. Judicial review undermines these beneficial qualities.
Academia.edu sent me this. While I don't necessarily agree with everything Poggi states -- even some of his basic arguments -- I think he sets forth good reasons for the American People's disillusionment with Article III courts. Indeed, its the same distate that Jesus expressed for hypocritical lawyers and judges when he chased them from the Temple. Its a long article, but very historically interesting. Here's is its Abstract: Abstract: As dissatisfaction with the Supreme Court grows, and calls for its reform continue to increase, it is clear from the most commonly-proposed solutions that Congress has abandoned its own reading of the Constitution and has ceded to the Supreme Court the unlimited power to re- write, or “interpret,” the Constitution in any manner the Court sees fit. Congress has allowed the Supreme Court to do this without any accountability whatsoever for the Court, and without the Court having to follow Article V amendment processes. With Congress having surrendered virtually absolute power to the Supreme Court for over two centuries, Supreme Court decisions determine the content of the Constitution, rather than the content of the Constitution determining Supreme Court decisions. Congress simply refuses to fulfill or acknowledge its Article III duty to regulate the Supreme Court. “On Supreme Court Regulation” combines research and political theory in examining how the Supreme Court functions, analyzing how that functioning has scant relationship to the duties assigned to the Court by the Constitution, and revealing how Congress has abrogated its duty to regulate the Supreme Court and prevent the concentration of power within the Judiciary. The system organized by the Constitution is compared herein with the judicial, political, social, and economic system created by the Supreme Court, which generally functions in direct contravention of the Constitution. The research and political theories presented in this project are not readily found elsewhere. It is possible they are available nowhere else, and certainly not all together in a single document. This information demonstrates the critical importance to Americans of understanding how radically different the United States would be—far more user- friendly, free, just, and isonomic—if the Supreme Court and Congress scrupulously followed the duties assigned them by the Constitution.
American Judges Against Judicial Independence
2009
Zdravstvuite! This presentation could have many titles. The one I finally chose is "American Judges Against Judicial Independence." Today, as I speak, there is a growing movement linking several members of the United States Supreme Court, the former federal judge who is the U.S. Chief of Homeland Security, and a sizeable cohort within the U.S. Congress. The affiliates hope to prohibit federal judges from relying on foreign and international resources when deciding cases arising under federal law. 1 This issue is very personal for some non-affiliated members of the U.S. Supreme Court. They are now the targets of death threats because they dared to refer to foreign law in their judicial work product. If this movement succeeds, there would be a remarkable difference between the state and federal courts of the United States. This potential federal judicial limitation would not be binding upon state courts. This contemporary anti-foreign legal sources movement has the more modest objective of barring at least federal judges from relying upon foreign resources in their judicial opinions. I am unable to comment on judicial independence in Russia. I am able to offer an opinion on how this political movement, if ultimately successful, could impact over two-hundred years of judicial independence in the U.S. Our analytical point of entry today will be three relevant U.S. Supreme Court cases from the 18 th , 19 th , and 20 th centuries. They provide an informative backdrop for the 2005 U.S. Supreme Court's decision in Roper v. Simmons. 2 It sparked a legal firestorm at the seat of power in Washington, DC. 3 Members of the two political branches of our government, including key legislative and executive officials, relied on Roper to launch their campaign to bar federal judges from using foreign legal resources in their judicial opinion writing. Recalling the vintage adage that those who do not know their history are bound to repeat it, I will now disinter three historical U.S. Supreme Court cases. They may actually support U.S. Supreme Court Justice Antoine Scalia's "originalist" theory that the U.S. Constitution is not a living document. He essentially argues that the meaning of the Constitution is limited to what the drafters intended-not any subsequent interpretation du jour. Thus, federal judges should not be incorporating evolving post-1789 standards of decency to interpret how constitutional clauses should be interpreted. In the first of these three cases-each decided in a different century-the first Chief Justice of the U.S. Supreme Court observed in 1793 that the U.S., "by taking a place among the nations of the earth, [had] become amenable to the laws of nations." 4 The Court therein embraced the view that the U.S., as a federal entity, was responsible to foreign nations for the conduct of each of its state entities, relative to national obligations arising under the law of nations. The second of these background cases is an 1815 U.S. Supreme Court case. It dealt with goods of a neutral Danish citizen. His sugar was being shipped from a British-occupied island (belonging to Denmark and six-hundred miles west of Ecuador). It was destined for London via Maryland. The sugar was seized during the U.S. War of 1812 with England. The question before
2009
This thesis explores the contribution of the US Supreme Court (USSC) and the European Court of Justice (ECJ) in the vertical and horizontal allocation of power. Said differently, it answers the two following questions: How do both Courts draw the line between the realm of politics and judicial process? How do they allocate power between the Union and its component States? After examining standing, the political question doctrine, negative and positive integration and liability in damages on both sides of the Atlantic, it is concluded that both Courts should not always look for "substantive" constitutional benchmarks. The reason lies in that sometimes the latter may turn to be either questions deemed too political for judicial resolution or insufficient to control congressional or Community legislative powers. Additionally, the judicial department should also pay due regard to a "process" review. This type of review would operate at two levels. At first stage, Courts should solve flaws in the procedure by which the political institutions adopt their decisions. For instance, this would be the case where procedures neglect "discrete and insular" minorities, or where they entrench incumbent political majorities. Thus, judicial review would be principled upon understanding "democracy" as an intangible value that cannot succumb to majoritarian pressures. At a second stage, Courts should also examine whether, in their deliberations, political actors pay due account to all interests at stake, particularly, to those not represented in the political process.
Journal of Constitutional Law, 2019
The role of the judicial branch in the US checks and balances model of the separation of powers has never been univocal; An analysis of the epochs reveals that this branch of government has come together in an interesting and complex way of evolution. The following paper briefly discusses the basic essence of the US constitutional model, the development of constitutional review within its framework, key characteristics of the Supreme Court control, along with several case-law decisions and the contemporary challenges of the American Supreme Court in a polarized political climate.