The Democratic Result of the Judicial Review

Name: Fei Yingying
School Number:2006937944
Social Scienses BSocSc

The Democratic Result of the Judicial Review

Abstract: Judicial review is very important in American history. And it’s still a hot topic that whether it is democratic or not. In my view,the unconstitutional review of the legistation of the congress enables people,either majority or minority ,to discuss the validity of the legislation, thus bridges the gap between representative democracy and the people.
Key words: democracy judicial review representative

Judicial review was born from a famous case Marbury v. Madison in United States law. During the decision making of Marshall , I guess no one really had though about the philosophy problem ,that is “is judicial review democratic or not ”,which leading to thousands of discussion and papers on this topic.
As well, even the judicial review itself is not a planed result. At the very beginning, The Constitution of the United States did not intend for the judicial branch to wield great power. Alexander Hamilton confirmed this notion in The Federalist, no. 78 when he wrote, "The judiciary ...will always be the least dangerous to the political rights of the Constitution. The judiciary may be truly said to have neither force nor will, but merely judgment." After Chief Justice John Marshall established the power of judicial review at the start of the 19th century, Hamilton's statement lost some of its luster. The power to overrule acts by the executive and legislative branches and state governments has allowed the Supreme Court to determine important policies of the country.
But as long as the concept “judicial review” was formed, by coincidence or not ,it is not purely a political or legal terminology any longer. It becomes a topic widely discussed by people from all disciplines. As there are always people agaist the validity of judicial review in the name of democracy, any later decision of “judicial review ” would be carried out really carefully.

What really interested me is that this ugly concept, which seems very easily leading to tyranny and created by a judge who might have no knowledge of philosophy, happened to fit perfectly with the democracy applied in today’s US society.
So how did this happened? I will discuss this from 2 aspects. One is from the effectiveness of the Congress, that is from the shortcomings of representative democracy. One is from the root and function of judicial review itself.
Some say judicial review is undemocratic mainly because it leads to an unelected branch (the judiciary) checks an elected branch (executive or legislature ) in the name of constitution. Here , we can see the logic is like this: A is unB because A is not C. Apparently, we took grant that B is as the same as C ,that is the “ elected branch” means democracy.
But is is not always the case in reality. Sometimes Representative democracy doesn’t work as it is expected. There are two scenarios according to John Hart Ely : one is ,in order to keep their own power, the selected representatives refuse to make any revolution of the institution; another is although no single opinion or single vote is ignored, the representatives supported by the majority deliberately undermine the interests of the minority , because of bias or hostility, they just refuse to give the same protection to some minorities as they give to the majority. In another words ,to some degree,it stops the political revolution, and it might as well undermine the interests of the minority.
The representative democracy has it’s flaws ,it is widely accepted by more and more people , so judicial review is at least partially justified, just as Ely believed that the Court need to use its power to "ensure equal participation in the processes of government (and) equal participation in the benefits and costs that process generates." There is always a reason to constantly looking into the legislation made by the Congress. So here I agree with Freeman , that judicial review is a kind of rational and shared precommitment among free and equal sovereign citizens at the level of constitutional choice. We say it is rational because people see the flaws of the representative democracy ,and they try to supplement it.
The point is why the court? Why shall we use the court to do the judicial review but not other institution? Ely argues that it is because judicial review is kind of procedure , leading to a relatively fair conclusion as long as it doesn’t involve in substantive law .The question is ,can procedural exist without making judgment of the substantive value? Of course not. Ely also argues that the reason why the 9 judges have the right to decide if the legislation is valid, is because they are all procedural experts and they are the outsiders of the politic. I think it’s purely illusion. Before Lewis F Powell was pointed as the judge of the Supreme Court, he had never taken any position in the Department of Justice. And no one can tell that the judges won’t have any bias on one case in a condition that it is pointed by the president, and the president is always serving a particular group(In theory once the president is elected, he serves all the people in the nation. But as we know it is always not the case. The fact that the republican are the representation of big corporations is clearly known by all ).
In my view, it’s pretty simple that only the judges can review the legislation because they hear cases ,they say “this bill is unconstitutional” only when they are trying to make a judgment on a particular case. They know the law better than anyone else, so they can decide if one act violates the constitution .I think it’s natural. But still it’s not the point. Justifying their right to do justice review doesn’t justify justice review itself.

In my point of view, judicial review builds a bridge between the representative institution and the voters,not only the majority but also the minority.(The representatives are charged with the responsibility of acting in the people's interest, but not as their proxy representatives—i.e., not necessarily always according to their wishes, but with enough authority to exercise swift and resolute initiative in the face of changing circumstances. It is often contrasted with direct democracy, where representatives are absent or are limited in power as proxy representatives. ) But there are always chances that the representatives make decision that violate either the majority or the minority, even the whole people’s interest.
And judicial review happened to be a prefect way to deal with these kinds of violation or misrepresentation. Not because the judges are experts or they are the outsiders of political interests ,nor because the due judicial process. Instead it is a symbolic way to attract all the people to participate in the legislation. To review a single case makes the discussion on the legislation more open ,and this kind of discussion attracted a lot of people to participate in the discussion in return, because it “is attractive to most of the people when the supreme court determines whether to announce some acts invalid or not.” Thus, a version that we are in a democracy society is established.
So actually judicial review provides an open stage on which they can discuss the validity of the legislation made by the congress in the name of constitution. And this is one of the functions of the court defined by John Rawls in the Political Liberalism. So judicial review enables the legislature to concern more opinions, and thus creates a democratic environment that enables the people to eliminate the overpower of the government and the legislature. In this sense we can say that judicial review is a kind of supplementary to representative democracy, it actually enables representative democracy to expand to all the people by making the debate more sufficient , and in most cases, the court’s decision is in accordance with the opinion of people.
Thank you for reading.