Analyse the argument that Judicial Review of legislation is incompatible with representative democracy?

Question

representative democracy is government

Answer 1

It depends on how well-disciplined the judges are with their legal reasoning. If judges are dedicated to discerning the intent of those who proposed and ratified the provisions of the Constitution, then judicial review fulfills represenatative democracy rather than contradicting it. But if judges are undisciplined and are only out to make new law rather than interpret it, then that is when judicial review contradicts representative democracy.

From John Hart Ely's "Democracy and Distrust."

"A long-standing dispute in constitutional theory has gone under different names at different times, but today's terminology seems as helpful as any. Today we are likely to call the contending sides 'interpretivism' and 'noninterpretivism' -- the former indicating that judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written constitution, the latter the contrary view that courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document. ...

"What distinguishes interpretivism from its opposite is its insistence that the work of the political branches is to be invalidated only in accord with an inference whose starting point, whose underlying premise, is fairly discoverable in the Constitution. That the complete inference will not be found there -- because the situation is not likely to have been foreseen -- is generally common ground."

Ely describes the late Justice Hugo L. Black as "the quintessential interpretivist" and says that more and more scholars have been attracted to Justice Black's philosophy of interpretting the Constitution.

"Justice Black and the interpretivist school have an inference, one that seems to find acceptance with friend and foe alike. Of course, they would answer, the majority can tyrannize the minority, and that is precisely the reason that in the Bill of Rights and elsewhere the Constitution designates certain rights for protection. Of course side constraints on majority rule are necessary, but as the framers wisely decided, it is saner and safer to set them down in advance of paticular controversies than to develop them as we go along, in the context of the particular political problem and its accompanying passion and paranoia. It is also, the argument continues, more democratic, since the side constraints the interpretivist would enforce have been imposed by the people themselves. The noninterpretivist would have politically unaccountable judges select and define the values to be placed beyond majority control, but the interpretivist takes his values from the Constitution, which means, since the Constitution itself was submitted for and received popular ratification, that they ultimately come from the people. Thus the judges do not check the people, the Constitution does, which means the people are ultimately checking themselves."

And yes, a "noninterpretivst" judge does indeed go beyond the Constitution and makes up brand new ideas for what the majority cannot do -- ideas that those who proposed and ratified the Constitution did not intend to address -- and thus is a maker of new law, not an interpreter.

Answer 2

Judicial review is not incompatible with, but realises, representative democracy. While democracy dictates that the will of the people is paramount, it has to be exercised within reason. Judicial review is the means by which a democracy ensures that whatever is passed by the representatives of the people, usually in a legislative body, conforms to the basic law of the land, usually a Constitution. Left alone, some constituents may find themselves marginalised.

Answer 3

a) even "the people of America" can goof when passing laws, and it is the judgesd' task to check parliamentary laws against the higher standards of the Constitution and foreign treaties to determine whether they are compatible and if the lower text ought not to be repealed or sent to those who made it to be made into an acceptable version.

b) If the People of America REALLY want a certain piece of legislation, in spite of the Constitution and treaties, then let them amend (or abolish) the constitution and denounce the treaties.... tough job for the government, but can be done, if possibly at great cost in international status and for the future of the nation.

I guess your paper is halfway done, feel up to it?