Institution Of Judicial Review Research Articles

The Role Of The Institution Of Judicial Review In Ensuring The Independence Of The Judiciary

This article discusses the role of the institute of judicial review in ensuring the independence of the judiciary; its importance in ensuring the rights and freedoms of citizens; its differences from fair trial; its types and forms of implementation; its subjects and objects; its purpose and content; its characteristics of execution through legal and disciplinary norms; its functions in law enforcement, regulation, organizational maintenance, education; as well as its prospects in strengthening the independence of the judiciary from other branches of government.

Judicial review without shortcuts: A vindication of the knower from a pragmatist and critical theoretical approach

In my article, I want to focus on the critique Cristina Lafont makes to expertocracy and epistocracy, mainly through the institution of judicial review, to which she dedicates chapter 7 and part of chapter 6 of her book Democracy without Shortcuts. First I will reconstruct the premises that support her arguments in favour of a democratic reading of judicial review. Then, I will pose some questions about its viability as an institution that favours the participation of the citizens in the shaping and the determination of the scope of the norms they are subjected to.

Shadow constitutional review: The dark side of pre-enactment political review in Ireland and Japan

Abstract Political constitutionalism is a major area of inquiry in contemporary constitutional discourse. A significant and increasingly central aspect of political constitutionalism is pre-enactment political review: laws being reviewed for constitutionality or rights compliance by parliament or the executive. This institution is said to be a good augmentation of, or even replacement for, the institution of judicial review, and it is said to bring with it a host of normative benefits. In this article, we wish to highlight an under-explored dark side to pre-enactment review. By undertaking a comparative analysis of functional pre-enactment review in several similar jurisdictions—Canada, New Zealand, and the UK—we contrast these systems, and the ordinary failings they display, with the much deeper problems of pre-enactment review in Ireland and Japan. These latter jurisdictions, we argue, not only fail to instantiate the benefits of pre-enactment review but in fact show that, in the right circumstances, pre-enactment review can have negative effects that are antithetical to the goals and values of political constitutionalism. We call this phenomenon “shadow constitutional review,” and suggest that it adds a layer of complexity and nuance to contemporary discussions of political constitutionalism.

The Ripples of Backlash: Same-sex Marriage, the Election of 2004, and the Evolution of Constitutional Law

The significance of the events of 2016 for the future development of constitutional law has been widely discussed in both scholarly commentaries and the popular press. After the death of Justice Antonin Scalia early in that year, many progressives looked forward hopefully to the prospect of regaining control of the Supreme Court for the first time in almost fifty years. However, after the Senate refused to consider Barack Obama’s nomination of Merrick Garland to replace Scalia, the surprise victory of Donald Trump in the presidential election led instead to further consolidation of conservative dominance of the Court. Unlike the election of 2016, the impact of the presidential election of 2004 on the evolution of constitutional doctrine has generally been ignored by commentators. In 2004, apparently due in part to the backlash against the drive to obtain legal recognition for same-sex marriages, Republican George W. Bush won a narrow victory over Democrat John Kerry. Bush soon had the opportunity to fill two vacancies on the Court, and both of his choices have in general brought a conservative perspective to the cases that have come before them. If, by contrast, Kerry had been elected in 2004, he would have almost certainly chosen progressives to replace Sandra Day O’Connor and William Rehnquist, giving progressives a majority on the Court that they would still enjoy today. This article begins by outlining the development of the dispute over same-sex marriage and the apparent relationship between that dispute and the Republican victory in 2004. The article then describes the consequences that that victory has had for the ultimate resolution of a wide variety of constitutional disputes and concludes by discussing the lessons of the election and its aftermath for our understanding of the role that the institution of judicial review has come to play in our political system.

The Problem of Judicial Review Revisited

The institution of judicial review is a vital part of the substructure on which the entire body of Australian constitutional law rests. However, although judicial review is a formidable power of immense significance, its exact constitutional basis is exceedingly difficult to pin down. This paper argues that while there are specific provisions in the text of the Constitution from which the exercise of judicial review may be inferred, such inferences depend on an understanding of the operation of those provisions within the wider structural features of the Constitution and the context of the institutions that the Constitution was intended to establish. It is only when the modalities of text, structure, history and principle are brought into a mutually illuminating and disciplining relationship with each other that judicial review can be constitutionally justified. Moreover, this justification of judicial review has implications for how the Constitution ought to be interpreted. Each of the modalities—text, structure, history and principle—must be brought into mutually illuminating and disciplining relationship if our interpretations of the Constitution are to possess explanatory power, and therefore constitutional authority. Principles and values have a legitimate role to play in constitutional interpretation, only as they are disciplined and illuminated by the Constitution’s text, structure and history.

Agora: Reflections on Zivotofsky v. Kerry: Historical Gloss, the Recognition Power, and Judicial Review

This short essay, prepared for a symposium in the American Journal of International Law Unbound, reflects on the Supreme Court’s interpretive methodology in the “Jerusalem passports” case, Zivotofsky v. Kerry. In particular, the essay considers the Court’s reliance on the historic practices of Congress and the executive branch in support of the Court’s finding of an exclusive presidential recognition power. In Zivotofsky, the relevant practice provided clear support only for a power of recognition and was ambiguous about whether this power was concurrent with congressional authority or exclusive. The Court’s assessment of the practice, therefore, appears to have been affected by other considerations, such as the Court’s perception about the consequences of adopting a particular interpretation. This is not necessarily an indictment, given that a similar dynamic often characterizes other aspects of constitutional interpretation, including textual analysis. It seems fair to say, however, that whereas in some cases historical practice shapes perceptions about other interpretive materials, in Zivotofsky it was largely the other way around. The decision also highlights tensions between a custom-based approach to the separation of powers and the institution of judicial review, tensions that are potentially relevant both to the proper scope of justiciability doctrines as well as to the way in which judicial decisions are best formulated.

'If We are Wrong...The Courts Will Correct It': Position-Taking, Judicial Review, and Legislative Voting

In this paper, I argue that the institution of judicial review affects the decision calculus of legislative voters by reducing the expected utility of supporting a legislative proposal with respect to policy change, while leaving the position taking value of legislation intact. I develop this argument through formal theoretical models of legislative decision making, and I test the predictions of these models empirically by analyzing a series votes cast in the United States Congress surrounding the issue of flag burning in 1989 and 1990. Observed patterns of voting across these legislative proposals support the models’ comparative predictions.

On Judicial Review in a Separation of Powers System

The institution of judicial review is an important mechanism of holding the government legally accountable, nevertheless questions remain about its proper role in a separation of powers system. This article analyzes the effect of judicial review on the policy-making process from an expertise perspective. It shows that the exercise of non-expert judicial review can induce more informed policies and that non-expert courts have incentives to exercise judicial review in a manner consistent with institutional concerns for expertise. In addition to its importance as a mechanism of legal accountability, our analysis underscores another virtue of judicial review: legal review of governmental policy by non-expert courts can improve the amount of information available for policy making. The article contributes to a literature on the scope and legitimacy of judicial review and has broader implications for understanding the effect of institutional checks and balances on the quality of policy making.

Introduction to Agora: Reflections on Zivotofsky v. Kerry

AJIL Unbound is pleased to publish an Agora on the Supreme Court’s recent decision in Zivotofsky v. Kerry (Zivotofsky II).1 This highly anticipated separation-of-powers decision addresses the validity of congressional action alleged to intrude upon the President’s exclusive power to recognize foreign sovereigns. The petitioner in Zivotofsky was born in Jerusalem and wished to have his birthplace designated on his passport as “Israel.” Because the Executive branch does not recognize any country’s sovereignty over Jerusalem, the birthplace of U.S. citizens born in Jerusalem has been designated on their passports as “Jerusalem.” In 2002, Congress passed a statute entitling persons born in Jerusalem to have “Israel” designated in their passports as their place of birth. At issue in the case was the validity of this statute. In an earlier decision, Zivotofksy v. Clinton (Zivotofsky I),2 the Court held that the question of the validity of the statute did not present a nonjusticiable political question. This symposium focuses on the merits decision, Zivotofsky II, decided on June 8, 2015. The majority, in an opinion by Justice Kennedy, held that the President’s power to recognize foreign sovereigns is exclusive and that Congress’ statute unconstitutionally interfered with that power. Chief Justice Roberts and Justice Scalia wrote dissents, which Justice Alito joined. Both dissents expressed skepticism about the majority’s conclusion that the President’s recognition power is exclusive, but, in the end, both dissents rested on the conclusion that the statute Congress had enacted did not unconstitutionally interfere with that power. (Justice Thomas largely concurred with the majority, albeit on other grounds.) The first set of essays in this Agora offer diverse insights into a variety of aspects of the opinions in the case. Our contributors from Philadelphia—Peter Spiro of Temple University Beasley School of Law and Jean Galbraith of the University of Pennsylvania School of Law—both note that the majority opinion departs from earlier decisions that had led some scholars to claim that the Roberts Court was “normalizing” Foreign Relations Law. Spiro frames this departure as a temporary retreat from normalization, while Galbraith sees value in the uncertainty produced by the departure. The contribution by Harlan Cohen of the University of Georgia School of Law examines the competing visions of foreign relations law reflected in the opinions of Justice Kennedy’s and Chief Justice Roberts—the first highly functionalist and the second highly formalist—and the role those visions may be playing across the Court’s foreign relations law jurisprudence. The contribution by Curtis Bradley of Duke Law School focuses on what the majority opinion in Zivotofsky tells us about the importance of historical practice in constitutional interpretation, particularly in the field of Foreign Relations Law, and also describes tensions between a custom-based approach to the separation of powers and the institution of judicial review. A second set of essays will follow shortly after.

The classical liberal constitution: the uncertain quest for limited government

American liberals and conservatives alike take for granted a progressive view of the Constitution that took root in the early twentieth century. Richard Epstein laments this complacency which, he believes, explains America's current economic malaise and political gridlock. Steering clear of well-worn debates between defenders of originalism and proponents of a living Constitution, Epstein employs close textual reading, historical analysis, and political and economic theory to urge a return to the classical liberal theory of governance that animated the framers' original text, and to the limited government this theory supports.Grounded in the thought of Locke, Hume, Madison, and other Enlightenment figures, the classical liberal tradition emphasized federalism, restricted government, separation of powers, property rights, and economic liberties. The most serious challenge to this tradition, Epstein contends, has come from New Deal progressives and their intellectual defenders. Unlike Thomas Paine, who saw government as a necessary evil at best, the progressives embraced government as a force for administering social good. The Supreme Court has unwisely ratified the progressive program by sustaining an ever-lengthening list of legislative programs at odds with the classical liberal Constitution.Epstein's carefully considered analysis addresses both halves of the constitutional enterprise: its structural safeguards against excessive government power and its protection of individual rights. He illuminates contemporary disputes ranging from presidential prerogatives to health care legislation, while reexamining such enduring topics as the institution of judicial review, the federal government's role in regulating economic activity, freedom of speech and religion, and equal protection.

Judicial Review and Racial Minorities: The U.S. Case

This essay examines U.S. policy toward African-Americans, Asian residents of the U.S. and Native Americans in the first four decades after the equal protection clause was added to the U.S.Constitution in an attempt to answer the question, 'Did the institution of judicial review at the national level in fact render the U.S. Supreme Court more protective than were the electorally responsive branches of the national government toward the rights of racial minorities mistreated by local majorities (specifically, blacks, Asians, and Native Americans)?' It concludes that it is not correct to say, as many scholars do, that the U.S. Supreme Court buried Reconstruction.Reconstruction died because of a century-long campaign of intermittent violent insurgency in the South, launched by whites to subjugate black people. Eventually, significant numbers of northerners either came to agree that the South was justified or gave up opposing the intense resistance because it was politically and financially costly not to do so. The political branches turned their backs on Reconstruction. Similarly, the political branches drove the oppressive policies toward Native Americans and Asians (and were in turn driven by local or state-level political forces, as with oppression of blacks in the South). Although the Court would occasionally step in against administrators for inappropriate mistreatment (e.g., the Crow Dog or the Wong Kim Ark cases), it was loathe (perhaps understandably) to interfere with policy that combined Congressional and Presidential will toward these foreign or quasi-foreign peoples. In sum, the Court was not the oppressor of racial minorities in the 1865-1908 period, nor was it, except on rare occasions, their savior. This finding would perhaps disappoint Alexander Hamilton (himself a founding member of the NY Manumission Society), but it should perhaps not surprise us, in light of the fact that elected branches are the ones that select and approve nominations to the Supreme Court.

Deliberative Democracy and the Institutions of Judicial Review by Christopher F. Zurn

<i>Deliberative Democracy and the Institutions of Judicial Review</i> by Christopher F. Zurn

Deliberative Democracy and the Institutions of Judicial Review

Deliberative Democracy and the Institutions of Judicial Review

The Property Puzzle

This Article constructs a political and institutional model of property, offering an innovative approach for addressing some of property's most puzzling features. The central thesis of this Article is that regardless of our preferred substantive justifications for property, dramatic decisions about the giving or taking of property, such as the full-scale nonconsensual transfer of title and possession in land from one person to another, should be chiefly made by explicit and publicly-reasoned resolutions of governmental entities entrusted with the power and duty of collective decision making - chiefly legislative and administrative bodies - supervised in turn by the institution of judicial review.

Deliberative democracy and the institutions of judicial review

Deliberative democracy and the institutions of judicial review

The Age of Marbury: Judicial Review in a Democracy of Rights

This is the third and last article in a series I have written exploring the new terrain of the conflict between and judicial review. I develop a theory of judicial review that is critical of contemporary judicial review and responsive to our democratic values and political circumstances without relying on the countermajoritarian difficulty. I begin by showing that the kind of judicial review endorsed in Marbury v. Madison is quite remote from the institution of judicial review as it exists today. While Marshall's reasoning remains persuasive for many, historical evidence shows that his argument was based on a completely different understanding of the law/politics distinction than the one that prevails today. In building my own theory of judicial review, I begin by contrasting Alexander Bickel's theory with Robert Dahl's famous study of the Supreme Court's influence to show how both works were dependent on the political context of their time. I then provide a political context for my theory by highlighting the importance of a closely divided government and the politicization of constitutional issues and the federal judicial appointment process. I justify by appealing to the concept of a democracy of that is led naturally to consistently protect constitutional values through legislation. Finally, I apply this account of to argue that the judiciary should defer to legislation that protects constitutional rights. I also argue that the creation of a of rights and the politicization of constitutional issues has led to a point where vigorous judicial review can no longer be justified. In the last part, I contrast my theory with two recent defenses of judicial review, one offered by Daniel Farber and Suzanna Sherry and the other by Christopher Eisgruber.

Confucian Constitutionalism? The Emergence of Constitutional Review in Korea and Taiwan

This paper documents the recent emergence of constitutional review of legislative and administrative action in Korea and Taiwan, two East Asian countries seen to be historically resistant to notions of judicial activism and constitutional constraint. It argues that the ability to draw from foreign legal traditions, especially those of the United States and Germany, empowered judges in these countries and therefore helped to alter the structure of public law away from executive-centered approaches of the past. This is consistent with viewing judicial review as essentially a foreign transplant. Nevertheless, the institution of judicial review has some compatibilities with Confucian legal tradition, a point that has implications for how we think about institutional transfers across borders. By constructing a locally legitimate account of what is undeniably a modern institution of foreign origin, the paper argues that constitutional constraint should not be viewed as an imposition of Western norms, but as a more complex process of adaptation and institutional transformation.

Confucian Constitutionalism: Globalization and Judicial Review in Korea and Taiwan

This paper documents the recent emergence of judicial review of legislative and administrative action in Korea and Taiwan, two East Asian countries seen to be historically resistant to notions of judicial activism and constitutional constraint. It argues that the ability to draw from foreign legal traditions, especially those of the United States and Germany, empowered judges in these countries and therefore helped to alter the structure of public law away from executive-centered approaches of the past. Nevertheless, the institution of judicial review can be described in terms compatible with the Confucian tradition, a point that has implications for how we think about globalization and institutional transfers across borders. By constructing a locally legitimate account of what is undeniably a modern institution of foreign origin, the paper argues that globalization should not be viewed as an imposition of Western norms, but as a more complex process of adaptation and institutional transformation.

Democracia e controle jurídico da constitucionalidade

O artigo enfrenta a objeção à "revisão judicial" (isto é a autoridade judicial para julgar a constitucionalidade dos atos dos poderes da República) que a considera uma instituição antidemocrática. A revisão judicial pode ser democraticamente justificada. Para isso teremos que pensá-la como um compromisso coletivo prévio assumido pelos cidadãos na situação de escolha constitucional, no sentido de que não exercerão seus direitos políticos iguais de formas que coloquem em risco sua própria condição de portadores dos direitos da cidadania igual.

Constitutional democracy and the legitimacy of judicial review

It has long been argued that the institution of judicial review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of judicial review as a legitimate democratic institution. The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which judicial review is appropriate in a constitutional democracy. This argument is contrasted with Hamilton's traditional argument for judicial review, based in separation of powers and the nature of judicial authority. I conclude with some remarks on the consequences for constitutional interpretation.