Judicial Review and Democracy the

Judicial Review and Democracy The basic premise of democracy is the idea of one man, one vote. However, in large societies, the idea of one man, one vote, necessarily becomes diluted because it is impracticable. In fact, one would not expect a country the size of the United States to be a true democracy, but a representative government.

Furthermore, the idea of a republican government strains the concept of democracy further; to balance state's rights and the rights of all of the nation's citizens, the framers of the Constitution came up with the concept of an Executive branch that represents the will of the nation and a Legislative branch that represents the will of the states. However, that does not explain the third branch of the Federal government. The Judicial Branch, with its almost unfettered power to overturn legislation by both the Executive and Legislative Branches.

How does a judiciary with almost unrestrained power fit into a democratic society? It does not, and yet judicial review may be almost single-handedly responsible for the preservation of democracy, and more importantly, liberty in America. Any discussion of judicial review requires a clarification of what exactly judicial review is. The concept of judicial review provides that "the Judicial Branch [is] the final arbiter of the law through its power of judicial review.

This means it can overturn laws passed by Congress or actions taken by the Executive Branch that are unconstitutional" ("Judicial Review/Marbury"). However, "the Constitution does not expressly provide for judicial review" (Linder). Instead, it was invented by Justice Marshall in Marbury v. Madison. Marshall began laying the foundation for judicial review in Wilson v. Mason, his first constitutional case. In Wilson, Marshall asserted that the Supreme Court could exercise its appellate authority, even in the face of state laws to the contrary.

Wilson was important because it illustrated Marshall's "determination to uphold national authority" ("The Gathering Storm"). In Wilson, Marshall asserted the power of the Supreme Court over the states. In Marbury, Marshall extended the power of the Supreme Court over the Federal government. Two days before President Adams' presidency ended he nominated 42 persons as justices of the peace in the capital, pursuant to the Judiciary Act of 1801.

The Judiciary Act enlarged the jurisdiction of the Federal courts, replaced the existing appellate system, and provided for a reorganization of the district courts ("The Gathering Storm"). The Senate confirmed the nominees. Marshall, in his capacity as Secretary of State, affixed the official seal to the commissions. The commissions did not get delivered before the end of Adams' term. Jefferson ordered that the commissions were not to be delivered.

Instead, because the Judiciary Act permitted the President to determine how many appointments to make, Jefferson reduced the total number of appointments and made his own appointments to the remaining offices. William Marbury, a Federalist, was one of those who lost their appointments. Marbury sought a writ of mandamus compelling the new Secretary of State, James Madison, to give Marbury his undelivered commission. Marshall, a Federalist, disagreed with the actions taken by Jefferson, a Republican and sought a way to disapprove of the action.

Marshall's brilliance came in branding "Jefferson a violator of civil rights without issuing an order that the President could have ignored" (Linder). Marshall dismissed Marbury's case, basing that dismissal on the idea that Section 13 of the Judiciary Act was unconstitutional and that the Supreme Court had the power to declare an unconstitutional law void. With that action, the concept of judicial review was born.

What judicial review means today is that there are nine men and women who are neither selected by the people nor accountable to the citizens, with the power to overturn legislation by both the Executive and Legislative branches. The concept has transformed the Judicial Branch from an interpretive legal body into a policy-making body. Since Marbury, the Supreme Court has developed a long tradition of making law, not just interpreting it.

The most influential Justices of their days are remembered today because of their commitment to the Constitution, reinforcing the court's rights to judicial review. For example, Justice Holmes, appointed by Franklin Roosevelt in the hopes that Holmes would support New Deal legislation, failed to do so if he believed that they were unconstitutional. In his widely cited decent in Olmstead v. United States, Justice Brandeis introduced the idea that the Constitution guaranteed citizens a right of privacy, paving the way for the decision in Katz v.

United States, which overturned Olmstead ("Louis Brandeis"). The most surprising champion of the Constitution was Justice Hugo Black. A former member of the Ku Klux Klan, there were concerns that Black would use his seat on the Supreme Court to discriminate against people. However, Black absolutely revered the Constitution, once saying "I believe our Constitution, with its absolute guarantee of individual rights, is the best hope for the aspirations of freedom which men share everywhere" ("Hugo Lafayette Black").

Because of the Supreme Court's policy-making role, the informal qualifications for Supreme Court nominees have become more important than their formal qualifications, which are nominal. In order to survive the confirmation process in the Senate, a candidate has to appeal to a majority of the Senate. However, nominees are not supposed to reveal how they would rule in particular cases. The policy-making role of the Supreme Court is particularly relevant in light of the 2004 election.

Given that many of the current Justices are on the verge of retirement, election 2004 gave Republicans control over the Judicial Branch, as well as the Executive and Legislative Branches. Both Democrats and Republicans are aware that the future of justice for the next 30 to 40 years may have been determined by the 2004 Presidential election. President Bush, however, has gone out of his way to assure the American people that he has no litmus test for appointing justices.

In light of the revelation that Chief Justice Rehnquist is battling cancer, Americans may soon be presented with the opportunity to find out if Bush really does intend to appoint Justices without regard to their positions on the controversial issues. The most divisive issue at the moment is the right to an abortion. Pro-choice and pro-life factions are aware that the current Supreme Court is far different than the Court of Roe v. Wade.

Post-Roe decisions have chipped away at the bright lines established in that decision, gradually giving the states more and more power to regulate and limit a woman's right to an abortion. One Justice could determine whether or not abortion remains legal. Even if Bush goes back on his word and selects a nominee based on his or her position on abortion, he may be surprised.

As stated above, Justice Black was a member of the Ku Klux Klan before becoming a Supreme Court Justice, however he did not permit his personal biases to cloud the guarantees of freedom granted to every human by the United States Constitution. Justice Black is but one example of the reason that the power of judicial review has enabled the U.S. Supreme Court to preserve liberty and freedom in the United States.

It has often been said that a democracy is a government by the people and for the people. Judicial review absolutely contradicts that idea. Truth be told, there is no role for judicial review in a true democracy. However, America is not known worldwide for being the best example of a democracy. Instead, America is known for respecting personal liberty and freedom. Judicial review is necessary to protect those rights.

Judicial review allows the Justices, who are not worried about re-election or pleasing constituents, to step back from the temper of the day and determine whether or not laws are actually constitutional. The power of judicial review has allowed the Supreme Court to make the guarantees of Equal Protection found in the Fourteenth Amendment to become a reality. In a true democracy, the majority rules determines the rights of the minority.

The power of judicial review enables the court to protect the constitutional rights of any citizen, even those that the majority would otherwise choose not to protect. The Court's decision in Gideon.