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Judicial Review: The Meaning of the Judicial Power

Randy E. Barnett

in Restoring the Lost Constitution: The Presumption of Liberty

This chapter applies the concepts of interpretation and construction to the contentious issue of judicial review and examines the originalist evidence that overwhelmingly supports the judicial power ... More

This chapter applies the concepts of interpretation and construction to the contentious issue of judicial review and examines the originalist evidence that overwhelmingly supports the judicial power to nullify unconstitutional laws. According to Article III of the Constitution: “The judicial Power of the United States, shall be vested in one Supreme Court, and in such Courts as Congress may from time to time ordain and establish.” The Constitution does not say explicitly that the “Supreme Court, and such inferior courts as may be established by Congress, shall have power to nullify a Law enacted by Congress and signed by the President if the Law is unconstitutional.” The absence of a clearly expressed grant of power has moved some critics of judicial review to question its legitimacy. The chapter also considers the concepts of judicial nullification and judicial supremacy as they relate to judicial review.Less

Advisory Opinions and Judicial Supremacy: Constitutionalism, a Politicized Judiciary, and the Eclipse of Civic Debate

Mel A. Topf

in A Doubtful and Perilous Experiment: Advisory Opinions, State Constitutions, and Judicial Supremacy

This concluding chapter argues that advisory opinions have contributed to politicization of the judiciary and to the eclipse of civic debate. Both have long been complaints about advisory opinion ... More

This concluding chapter argues that advisory opinions have contributed to politicization of the judiciary and to the eclipse of civic debate. Both have long been complaints about advisory opinion jurisdiction, prominently in a 1924 article by Felix Frankfurter. The politicization and eclipse has been aggravated in recent years by the adoption in some advisory opinion jurisdictions of a public importance exception, by which the advising justices waive their own restrictions on rendering advice. The exception is so vaguely and loosely applied that it threatens to devour the restrictions altogether. With the failure of the nonbinding doctrine (discussed in Chapter 5), together with the public importance exception sabotaging the restrictions on issuing advisory opinions, the advising justices are increasingly free to impose “advice” on legislatures and governors without limit. This contributes, this chapter argues, to the politicization of the judiciary and to the withdrawal of political issues from the civic realm, resulting in a substantial contribution to the growth of judicial supremacy.Less

Thesis and antithesis: To check or not to check the Judiciary

Cristina E. Parau

in Transnational Networking and Elite Self-Empowerment: The Making of the Judiciary in Contemporary Europe and Beyond

This chapter analyses Network Community discourses in order to better expose the causal role of its hegemonic norms. Key assumptions held by the Community about the qualities of their agenda are ... More

This chapter analyses Network Community discourses in order to better expose the causal role of its hegemonic norms. Key assumptions held by the Community about the qualities of their agenda are brought to light. Classical Anglo-Saxon conceptions of the separation of powers, checks and balances, judicial independence, and the rule of law, the utility of which has stood the test of time, are compared to the theory and practice of the Network Community’s Judiciary institutional design Template. The Network conceives of the separation of powers, checks and balances, judicial independence, and the rule of law as emanating from the autonomy and supremacy of a Judiciary so empowered as invariably to subordinate all other contestants in case of conflict with itself over constitutional meaning. The chapter ends with a systematic catalogue and critical examination of those few acts of state which the Network Community conceive as legitimate checks and balances on their Judiciary design.Less

Constitutional Authority

Mark A. Graber

in A New Introduction to American Constitutionalism

Constitutional authority in the United States is a consequence of complex interactions between elected officials, political activists, and unelected justices that more resembles the chaos of the ... More

Constitutional authority in the United States is a consequence of complex interactions between elected officials, political activists, and unelected justices that more resembles the chaos of the local garage band than the precision of a Mozart symphony. Some version of judicial supremacy has historically been the dominant theory but less often the actual practice. Supreme Court decisions influence official constitutional practice on such matters as crime and punishment, but so the attitudes of the local prosecutor, the availability of defense lawyers, the sympathies of the local juries, and whether the most recent appointments to the federal bench were made by a president determined to appear tough on criminals. This end result is hardly the pristine vision found in most civics books but may reflect the rough balance between fundamental law and popular sovereignty that underlies a functioning constitutional democracy.Less

Reappraising judicial supremacy in the Irish constitutional tradition

Eoin Daly

in Judges, politics and the Irish Constitution

In his chapter, Eoin Daly casts a sceptical eye on judicial supremacy. Daly argues that the doctrine goes almost unquestioned in Irish constitutional scholarship (and practice) and that its value and ... More

In his chapter, Eoin Daly casts a sceptical eye on judicial supremacy. Daly argues that the doctrine goes almost unquestioned in Irish constitutional scholarship (and practice) and that its value and potential is vastly overstated, while its costs – particularly its tendency to stultify rights-discourse in the sphere of ordinary politics – go largely under-appreciated. consider how various familiar, principled objections to strong-form judicial review, of the sort typically aired in other Anglophone jurisdictions, may be borne out in the Irish context. Two arguments in particular are salient in the Irish experience. First, the understanding of strong-form judicial review as being ‘good for rights’ conceives of rights narrowly, ignoring the connection between individual freedom and citizenship, and overlooking problems of domination in social and political life. Secondly, rights-based review of legislation undermines democratic citizenship in the Irish context, not because it undermines majority decision-making as such, but rather, because it has meant that ever-increasing areas of political argument are framed in esoteric constitutional terms.Less

Legitimacy of the Basic Structure Doctrine

Sudhir Krishnaswamy

in Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine

The basic structure doctrine has, since its inception in Kesavananda Bharati v. State of Kerala in 1973, often been criticized as being illegitimate. This chapter examines the key challenges to the ... More

The basic structure doctrine has, since its inception in Kesavananda Bharati v. State of Kerala in 1973, often been criticized as being illegitimate. This chapter examines the key challenges to the legitimacy (including moral legitimacy, legal legitimacy, and sociological legitimacy) of the basic structure doctrine by engaging directly with the normative arguments about legitimacy of the doctrine while building on arguments of legal doctrine carried out so far. It focuses on the mode of constitutional interpretation and the judicial role in creating and sustaining the use of the basic structure doctrine, and considers Richard Fallon's account of the concept of legitimacy in constitutional theory. It also discusses express constitutional meanings, implied constitutional meanings, the doctrine of implied limitations, the doctrine of necessary implication, structural interpretation, exclusivity of amending power, and judicial review. Finally, the chapter explores alternative accounts of the concept of sovereignty advanced by the Supreme Court and academic commentators as underlying the basic structure doctrine: judicial supremacy, popular sovereignty, and shared sovereignty.Less

The Courts in Foreign Affairs

Louis Henkin

in Foreign Affairs and the United States Constitution

Foreign relations are political relations conducted by the political branches of the federal government. At times, however, they come into court. The ordinary business of courts, too, sometimes ... More

Foreign relations are political relations conducted by the political branches of the federal government. At times, however, they come into court. The ordinary business of courts, too, sometimes involves or affects U.S. foreign relations. An independent judiciary applying the written constitution is a hallmark of government in the United States. The courts have successfully established ‘judicial review’ and ‘judicial supremacy’, their final and ‘infallible’ authority to impose their readings of the constitution on the political branches of the federal government as well as on the states, to monitor the separation of powers and the divisions of federalism, and to protect individuals, minorities, even majorities, against governmental excesses. Judicial review is the most dramatic function of U.S. courts, but it is not their principal or their most important activity.Less

The Rule of Law in Dark Times

in Lincoln's Constitution

The relation between the Civil War and the rule of law seems paradoxical. Lincoln's goal was to prove that “among free men, there can be no successful appeal from the ballot to the bullet; and that ... More

The relation between the Civil War and the rule of law seems paradoxical. Lincoln's goal was to prove that “among free men, there can be no successful appeal from the ballot to the bullet; and that they who take such appeal are sure to lose their case, and pay the cost.” Lincoln had once called on Southerners to seek a judicial ruling on slavery in the territories rather than breaking apart the Union. The certainty of executive execution of the law, including rules of law articulated by the courts, is important both for the security of individual rights and for the supremacy of federal law. The strongest argument against the jurisdictional view of suspension is that in practice it would leave the executive as the sole judge of whether the writ was validly suspended.Less

Sovereignty, Constitutional Dialogues, and Political Networks: A Comparative and Conceptual Study

Margit Cohn

in Sovereignty and the Law: Domestic, European and International Perspectives

This Chapter links two discourses: sovereignty and constitutional dialogue. Dialogue analysis is typically part of a normative attempt to alleviate concerns about the supremacy of the judiciary once ... More

This Chapter links two discourses: sovereignty and constitutional dialogue. Dialogue analysis is typically part of a normative attempt to alleviate concerns about the supremacy of the judiciary once judicial review of legislation is introduced. In this Chapter, it is argued that “dialogue” in fact connotes two distinct structural arrangements: formal and implied. True formal dialogue mechanisms create potential crises for those who wish to maintain the hierarchical vision of sovereignty as they transform the balance of powers. Other constitutional mechanisms such as limitations clauses have been defined as dialogic instruments, but are in fact are mere permutations of the classical form of judicial decision-making. The Chapter discusses the version of implied/political dialogue that has emerged in the US and offers a vision of multi-player networks that operate both in the legal and political spheres. The Chapter demonstrates how both formal and implied dialogue assist in rejecting hierarchical visions of domestic sovereignty.Less

Defending Dialogue

Po Jen Yap

in Constitutional Dialogue in Common Law Asia

This chapter explains why, as a constitutional theory, dialogic judicial review is normatively superior to the opposing alternatives of legislative or judicial supremacy. Lawmakers are vulnerable to ... More

This chapter explains why, as a constitutional theory, dialogic judicial review is normatively superior to the opposing alternatives of legislative or judicial supremacy. Lawmakers are vulnerable to the whims of populist needs, while the Judiciary is composed of unelected officials who are unaccountable to the public and lack the information-gathering capacities of the legislature. Judges are less accountable to the public than lawmakers and that they are equally capable of making egregious blunders of moral judgment. On the other hand, legislative supremacists pay scant attention to the fact that legislators have every incentive to preserve their own incumbency and are open to neglecting the needs of the politically vulnerable. Given that both institutions are equally fallible, an ideal vision of constitutional democracy must provide a space for both the judiciary and the legislature to provide independent insights to the optimal specification of a human rights norm.Less

The Democratic Challenge to Constitutional Law

Brian E. Butler

in The Democratic Constitution: Experimentalism and Interpretation

This chapter identifies and critiques a dominant explanation for judicial supremacy in constitutional law. This theory, the “protection from the tyranny of the majority” story, is examined in the ... More

This chapter identifies and critiques a dominant explanation for judicial supremacy in constitutional law. This theory, the “protection from the tyranny of the majority” story, is examined in the form offered by Erwin Chemerinsky. Importantly, while Chemerinsky holds to this theory, his analysis actually highlights the failure of the United States Supreme Court to live up to the theory through a long list of antiprecedents. The chapter offers an alternate possibility, that of “popular constitutionalism,” as a critique of the narrow perspective offered by protection from majority theories of constitutional law. Ultimately, through an analysis of the pragmatism of John Dewey and an outline of Charles Sanders Peirce’s ways of fixation of belief, the chapter ends by proposing the construction of a democratic and experimental conception of constitutional law labelled “democratic experimentalism.” This conception is described as “law as a democratic means.” Law as a democratic means utilizes an experimental manner of reasoning that entails democratic community. This, in turn, better satisfies Dewey’s demand that democratic aims can only be properly pursued through democratic means.Less

Proportionality and Constitutional Governance

Alec Stone Sweet and Jud Mathews

in Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach

The chapter explains why enforcement of the proportionality principle has become the central procedural component of constitutional governance in the world today. Part I argues that proportionality ... More

The chapter explains why enforcement of the proportionality principle has become the central procedural component of constitutional governance in the world today. Part I argues that proportionality analysis [PA]—with its distinctive sequence of subtests culminating in balancing—neatly fits the structure of qualified rights, providing a comprehensive analytical framework for adjudicating them. A right’s provision is “qualified” when it contains a limitation clause, which authorizes government officials to restrict the enjoyment of a right for some sufficiently important public purpose. Today, virtually all of the most powerful courts in the world deploy PA to determine whether officials have properly exercised their authority under limitation clauses. PA proceeds through a sequence of subtests: (i) “legitimacy,” or “proper purpose”; (ii) “suitability” or “rational connection”; (iii) “necessity”; and (iv) “proportionality in the strict sense.” A government measure that fails any subtest in this sequence is unlawful. Part II directs attention to the various ways in which proportionality enables judges to manage legitimacy issues associated with the judicial supremacy that comes with trusteeship. PA enables judges: to avoid creating rigid hierarchies among rights and interests; to exploit the legitimizing logics of Pareto optimality (reducing harm to the loser as much as possible); and to identify and respect the lawmaking prerogatives of the officials whose policymaking they supervise. Part III develops a simple model of constitutional governance—with rights, a duty of officials to justify their rights-regarding actions, and PA at its core—and respond to objections and alternatives.Less

Judicial Review and Political Responses

Chintan Chandrachud

in Balanced Constitutionalism: Courts and Legislatures in India and the United Kingdom

This chapter begins developing the negative claim made by the book: the HRA does not enable legislatures to assert their understandings of rights more freely than judicial supremacy under the Indian ... More

This chapter begins developing the negative claim made by the book: the HRA does not enable legislatures to assert their understandings of rights more freely than judicial supremacy under the Indian Constitution. Political practice shows that it is similarly burdensome to respond to declarations of incompatibility in the UK as it is to respond to strike-downs in India. In the Indian context, constitutional amendments of two kinds (referred to as ‘fundamental rights amendments’ and ‘Ninth Schedule amendments’) have been invoked by Parliament to respond to judgments striking down primary legislation. In the UK, Parliament has some room for manoeuvre when responding to declarations of incompatibility, and even though no such declaration has yet been rejected outright, such a rejection cannot be ruled out.Less

Conclusion

Oliver Gerstenberg

in Euroconstitutionalism and its Discontents

By engaging with democratic-minded objections and rule-of-law based critiques of constitutionalism, this book has suggested that, counterintuitively, a retreat from judicial supremacy becomes the ... More

By engaging with democratic-minded objections and rule-of-law based critiques of constitutionalism, this book has suggested that, counterintuitively, a retreat from judicial supremacy becomes the most promising route towards redeeming fundamental social and personal rights under modern conditions of deep moral dissensus and complexity. But this step would indeed amount to an abdication of judicial role and responsibility—as both these critiques fear—unless it goes hand in hand with a moral-practical emphasis on the proceduralizing—that is, forum-creative and agenda-setting—role of courts in the process of a progressive clarification of the meaning of a right. But ongoing deliberation does not mean indefinite postponement of substantive resolution because the underlying proceduralist consensus is robust enough to express a commitment to mutual recognition of participants as stakeholders with legitimate interests. This proceduralist move addresses uncertainty in encouraging joint learning about unforeseen possibilities and limits. It helps legitimize decisionmaking in pluralism by authorizing the participation in the undertakings that concern them and by making a best-practice consensus routinely corrigible. Outcomes are legitimate as long as procedures are sufficiently inclusive to allow citizens whose interpretive views do not prevail to (re-) initiate scrutiny and revision of shared constitutional understandings in the light of new experience. Courts require attentions to relevant reasons. Over time, when interpretive answers have crystallized in the light of experience and mutual reason giving, courts can then shift towards stronger forms of judicial intervention that consolidate best practice. It is this proceduralizing move that Euroconstitutionalism epitomizes.Less

Conclusion

Chintan Chandrachud

in Balanced Constitutionalism: Courts and Legislatures in India and the United Kingdom

This chapter ties together the arguments made in preceding chapters of the book. It explains that the book offers an alternative account for the superiority of the HRA in terms of ensuring balanced ... More

This chapter ties together the arguments made in preceding chapters of the book. It explains that the book offers an alternative account for the superiority of the HRA in terms of ensuring balanced constitutionalism. The explanation derives from the ability of British courts to express their genuine understandings of rights by making declarations of incompatibility in situations in which Indian courts are reluctant to do so. It speculates about the future of the HRA, and explains that external instability is the price that the new models of judicial review like the HRA pay for ensuring a more balanced allocation of powers between legislatures and courts than models of judicial supremacy.Less

Consolidation, 1951–1959

Justin Collings

in Democracy's Guardians: A History of the German Federal Constitutional Court, 1951–2001

Chapter 1 has three major themes: (1) the Court’s battle for institutional independence vis-à-vis the executive and the ministry of justice, a battle that played out against the backdrop of a ... More

Chapter 1 has three major themes: (1) the Court’s battle for institutional independence vis-à-vis the executive and the ministry of justice, a battle that played out against the backdrop of a controversy surrounding the constitutionality of the proposed European Defence Community; (2) the Court’s struggle for supremacy within the judiciary—that is, its conflict with the ‘ordinary’ German courts; and (3) the Court’s establishment of a fundamental rights jurisprudence that conceived of basic rights not merely as defensive rights against the state, but as objective values whose ‘radiating influence’ permeated all spheres of public and private law. The chapter also visits various causes celebres—the Court’s banning of the German Communist Party, its injunction of an atomic weapons plebiscite, its early landmark decisions on gender equality, etc. The chapter stresses the fundamentally anti-Nazi orientation of the early Court, as well as the anti-Nazi credentials of its justices.Less

Conclusion: Prohibition and American Constitutionalism

Sean Beienburg

in Prohibition, the Constitution, and States' Rights

After successfully mobilizing on behalf of states’ rights, the AAPA evolved into the Liberty League seeking to stop Franklin Roosevelt’s New Deal, which it considered a betrayal of their support. ... More

After successfully mobilizing on behalf of states’ rights, the AAPA evolved into the Liberty League seeking to stop Franklin Roosevelt’s New Deal, which it considered a betrayal of their support. Roosevelt’s success in defeating them, and ensuing Supreme Court precedents like Wickard v. Filburn, ushered in an expansive understanding of federal power rendering superfluous future efforts to augment national authority via constitutional amendment. After concluding that history, the chapter assesses the prohibition debates as an application of various legal theories. Prohibition offers a model example of extrajudicial constitutional interpretation, with thoughtful, careful, public deliberation by state elected officials rather than simply deference to judicial supremacy. Perceived constitutional obligations often constrained their behavior even at great political cost. Though less obviously, prohibition also arguably serves as an example of popular constitutionalism. Far from lawlessly insisting on alcohol, American citizens arguably got the Constitution right in rejecting both nullification and state concurrent enforcement laws, effectively adopting the non-commandeering doctrine illustrated by later cases like Printz v. United States. As both our contemporary indifference to citing (and being constrained by) the enumerated powers and flirtations with nullification attest, the era’s sophisticated constitutional dialogue has not always been the norm in American history.Less