What is a Judicial Review?

Judicial review is that power the court has to review and even nullify, if need be, those laws and acts by the government that are deemed unlawful. It seeks to ensure that public bodies do not misuse the powers that have been vested in them, thereby acting beyond their powers. This process involves a court proceedings in which a Judge reviews those decisions and actions that have been demonstrated by the public body to see how lawful it is. It is important to note that judicial review is not concerned with the end result of the decision that was made by the public body; it is more concerned as to whether the right procedures were followed at arriving at that decision. Judicial review is generally the final word by a governmental institution on a law’s validity. [1]

This essay would be focusing on how judicial review is operated in the United States of America and its importance within their constitution. Judicial review has become very important to the constitutional government in the United States of America; as it is now embedded as part of their constitutional law.

Ronald Dworkin has been a firm defender of judicial review of constitutional rights in the United States. [2] He is of the strong opinion that once a constitution’s principle is enforced by independent Judges, it is not undemocratic and there is no trade-off between rights and democracy. [3] He believes there should be a particular procedure of interpreting the law, and this should not just be done in an inconsistent manner as is done by different government officials of a community when put in power. He believes that different government officials will interpret the law separately which is deemed as unfair, and believes the power to make the final decisions should be left in the hands of the courts, which would bring about consistency within the constitution when laws are being made. For this reason, he went further to support the first Amendment of the United States Constitution, which recognises a moral principle that is it wrong for government to censor or control what individual citizens say or publish and incorporates it into American law. [4] He is of the opinion that a limitation on their freedom of speech narrows their rights and does not benefit the community as a whole, he is of the opinion that the government should not have such rights, and this is why he argues in support of judicial review, because he is of the belief that decisions reached by the judges would not put a limitation on the rights of the citizens; but in fact be advantageous to the people as a whole.

This essay is going to analyse two major views that have been a cause of debate as to which way democracy is best operated. The first is the Majoritarian Premise, followed by Dworkin’s ‘Constitutional Conception of Democracy’ which is Dworkin’s own belief on the way he beliefs democracy would operate best.

The Majoritarian premise is of the view that democracy should be in such a way that political decisions or process should be one that favours the majority of the citizens. [5] This has been condemned by Dworkin. He has said that a political system which allows ordinary majorities to make decisions about rights is not truly democratic; and any version of democracy that requires deference to temporary majorities on matters of individual right is in fact brutal and alien. [6] He does not believe in favouring the majority of a community, he believes in favouring and protecting individual rights. Even though it seems as though most people in the United States of America have come to accept the Majoritarian view, it is important to note there have been some who believe that Majoritarian Premise should not always be the final judge, this is because there are situations where individual rights need to be protected, where decisions should not be based solely on what the majority wants. This is why Dworkin has condemned this view; he believes it is not fair when a political majority is allowed to have its way. What other way could democracy possibly operate if the Majoritarian view is deemed as partial and not truly democratic? This has brought about a lot of confusion within the constitution. Dworkin however goes ahead to give his own view on democracy which he refers to as ‘Constitutional Conception of Democracy’. He believes decisions based on this view are more democratic and fair than those made based on the Majoritarian premise.

The Constitutional Conception of democracy is a view which goes strongly against the Majoritarian premise. It suggests that democracy should operate in such a way in which collective decisions are made by those institutions whose structure, composition and practices treat all members of the community with equal concern and respect. [7] This is done for the advantage of the equal status of citizens, and not out of any commitment to the goals of majority rule. [8] This is one major reason Dworkin has argued against the legislatures and given his support for the courts. He believes only an independent body such as the Judges can achieve making decisions which respect not only the majority of a community but to the advantage of individual citizens as a whole.

Dworkin went further to make it clear that he is not of the opinion that democracy does not exist unless Judges have the final say, putting aside what the majority thinks, but all he is saying is, there is no loss to democracy when the power to make the final decision is vested in the Judges. [9] Dworkin’s view on how he believes democracy should work has been an issue for some political theorists and critics who are not in any way in support of judicial review. They have argued in support of their argument that judicial review is simply giving the judges freedom to impose their moral convictions on the public, and democracy is sometimes lost when this power is given to them. [10]

As there are many differing opinions on judicial review, Dworkin has however not had the last say when it comes to the issue of judicial review. He has been challenged by other political critic who objects to judicial review of legislation. This essay is going to analyse Jeremy Waldron, a judicial review critic. Waldron’s view on judicial review and his beliefs on the issues which arise in democracy as a whole would also be carefully analysed.

Waldron has criticized judicial review on two main grounds. First, it has been argued that there is no reason to assume that rights are better protected by this practice of judicial review than they would be by democratic legislators, and secondly, it has been argued that apart from the outcomes it generates, judicial review is democratically illegitimate. [11] Waldron is of the opinion that there is no absolute reason to believe that judicial review will do a better job in protecting the individuals and their rights than the government representatives that have been elected by the people themselves.

Waldron has been concerned with the issue of how legal it is for Judges to able to condemn the legislature every time they believe it has violated human rights and has wondered whether this should be allowed or not. Even though some people have supported Waldron’s view and have argued against judicial review on the grounds that it leads to bad decisions such as the striking down of 170 labour statutes by state and federal courts in the Lochner era, [12] Waldron acknowledges the fact that judicial review is still cherished by some people as they see it is a process in which claims of rights are steadily and seriously considered. He however goes further in his defence, criticizing those who cherish judicial review by arguing that judicial review of legislation is definitely inappropriate as a mode of final decision making in a free and democratic society, and gives reasons to support his argument. [13]

In support of his argument, Waldron states clearly the two fronts on which it is easy to attack the idea of judicial review. Firstly He said that judicial review does not provide a way for a society to focus clearly on the real issues at stake when citizens disagree about rights; on the contrary, it distracts them with side-issues about precedents, texts and interpretation. [14] The other ground is the fact that it is politically illegitimate, so far as democratic values are concerned. It just privileges majority voting among a small number of unelected and unaccountable judges, it disenfranchises ordinary citizens and it ignores the cherished principles of representation. [15]

It is important to state that Waldron has made it clear that he does not have anything against the practice of judicial review of legislation in all circumstances. His problem is with right-based judicial review, he believes that the process of judicial review in such a situation is just inappropriate for reasonably democratic societies whose main problem is not that their legislative institutions are dysfunctional but simply that the members of such a community disagree about rights. [16] He does not believe the best way to resolve these differences in rights is through judicial review, he believes these arguments can be resolved by adopting those procedures that respect the voices and opinions of the person in their millions, whose rights are at stake in these disagreements and treat them as equals in the process [17] . He is of the belief these procedures can address in a responsible fashion those tough issues on which right disagreements arise. He argues ordinary legislative procedures can do this and there is no need to involve the judges in this process. [18] . Contrary to what Dworkin believes, Waldron has argued the process of judicial review would do little or nothing to resolve the issue of right disagreements amongst members.

In conclusion, it is however important to note that both Dworkin and Waldron have strong points to support their views on the relationship between the court and the legislature and how they believe these two should operate to bring about the best results in a democratic country. Dworkin wants a community whereby the rights of individual members are respected. He argues there is no better way to achieve this than through the process of judicial review. It cannot be disputed that Dworkin is only trying to protect the rights of individual members of the community, what I do not however agree with is the method by which he argues this is to be achieved, and for this reason I would argue in support of Waldron and how he believes democracy is best operated and the solution he provides on how differences in rights can be solved. I believe just as Waldron argues that the solution to differences which occur in rights between members of a community cannot be solved through judicial review. This is because, judicial review gives judges whom they have not appointed the right to make decisions on their behalf, this is not democratic and there is no guarantee that the final outcome of the decisions that would be made would favour and respect the voices and opinions of person in their millions. As Waldron has stated, certain procedures that do not have to involves the judges can be formulated, that would respect the voices and opinions of people whose rights are at stake and which would result in treating everyone as equal and respecting the opinions of millions of people within that community. This I believe as Waldron already stated he can be done through ordinary legislative procedures without the help of judges.