Exodus 18 | Deuteronomy 1 | Ezra 7
Universal Legal Systems Analysis
“Helping Individuals, Organizations & Communities
Achieve Their Full Potential”
Vol. IX, Issue XXXVII – Q-2 April | May | June 2023
The Advocacy Foundation, Inc.
Helping Individuals, Organizations & Communities
Achieve Their Full Potential
Universal Legal Systems Analysis
“Helping Individuals, Organizations & Communities
Achieve Their Full Potential
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Jethro Visits Moses
1 Now Jethro, the priest of Midian and father-in-law of Moses, heard of everything God had done for Moses and for
his people Israel, and how the LORD had brought Israel out of Egypt. 2 After Moses had sent away his wife Zipporah,
his father-in-law Jethro received her 3 and her two sons. One son was named Gershom, for Moses said, "I have
become an alien in a foreign land"; 4 and the other was named Eliezer, for he said, "My father's God was my helper;
he saved me from the sword of Pharaoh." 5 Jethro, Moses' father-in-law, together with Moses' sons and wife, came to
him in the desert, where he was camped near the mountain of God. 6 Jethro had sent word to him, "I, your father-inlaw
Jethro, am coming to you with your wife and her two sons." 7 So Moses went out to meet his father-in-law and
bowed down and kissed him. They
greeted each other and then went into the
tent. 8 Moses told his father-in-law
about everything the LORD had done
to Pharaoh and the Egyptians for
Israel's sake and about all the
hardships they had met along the
way and how the LORD had saved
them. 9 Jethro was delighted to
hear about all the good things
the LORD had done for Israel in
rescuing them from the hand of
the Egyptians. 10 He said,
"Praise be to the LORD, who
rescued you from the hand of the Egyptians and of
Pharaoh, and who rescued
the people from the hand of
the Egyptians. 11 Now I know
that the LORD is greater
than all other gods, for he did
this to those who had treated
Israel arrogantly." 12 Then
Jethro, Moses' father-in-law,
brought a burnt offering and
other sacrifices to God, and
Aaron came with all the
elders of Israel to eat bread
with Moses' father-in-law in
the presence of God. 13 The
next day Moses took his seat
to serve as judge for the
people, and they stood around him from morning till
evening. 14 When his father-
in-law saw all that Moses
was doing for the people, he
said, "What is this you are
doing for the people? Why do
you alone sit as judge, while
all these people stand around you from morning till
evening?" 15 Moses answered
him, "Because the people come
to me to seek God's will. 16
Whenever they have a dispute, it
is brought to me, and I decide
between the parties and inform
them of God's decrees and laws." 17 Moses' father-in-law replied, "What you are doing is not good. 18 You and these
people who come to you will only wear yourselves out. The work is too heavy for you; you cannot handle it alone. 19
Listen now to me and I will give you some advice, and may God be with you. You must be the people's representative
before God and bring their disputes to him. 20 Teach them the decrees and laws, and show them the way to live and
the duties they are to perform. 21 But select capable men from all the people--men who fear God, trustworthy men
who hate dishonest gain--and appoint them as officials over thousands, hundreds, fifties and tens. 22 Have them
serve as judges for the people at all times, but have them bring every difficult case to you; the simple cases they can
decide themselves. That will make your load lighter, because they will share it with you. 23 If you do this and God so
commands, you will be able to stand the strain, and all these people will go home satisfied." 24 Moses listened to his
father-in-law and did everything he said. 25 He chose capable men from all Israel and made them leaders of the
people, officials over thousands, hundreds, fifties and tens. 26 They served as judges for the people at all times. The
difficult cases they brought to Moses, but the simple ones they decided themselves. 27 Then Moses sent his fatherin-law
on his way, and Jethro returned to his own country.
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The Command to Leave Horeb
1 These are the words Moses spoke to all Israel in the desert east of the Jordan--that is, in the Arabah--opposite
Suph, between Paran and Tophel, Laban, Hazeroth and Dizahab. 2 (It takes eleven days to go from Horeb to Kadesh
Barnea by the Mount Seir road.) 3 In the fortieth year, on the first day of the eleventh month, Moses proclaimed to the
Israelites all that the LORD had commanded him concerning them. 4 This was after he had defeated Sihon king of
the Amorites, who reigned in Heshbon, and at Edrei had defeated Og king of Bashan, who reigned in Ashtaroth. 5
East of the Jordan in the territory of Moab, Moses began to expound this law, saying: 6 The LORD our God said to us
at Horeb, "You have stayed long enough at this mountain. 7 Break camp and advance into the hill country of the
Amorites; go to all the neighboring peoples in the Arabah, in the mountains, in the western foothills, in the Negev and
along the coast, to the land of the Canaanites and to Lebanon, as far as the great river, the Euphrates. 8 See, I have
given you this land. Go in and take possession of the land that the LORD swore he would give to your fathers--to
Abraham, Isaac and Jacob--and to their descendants after them."
The Appointment of Leaders
9 At that time I said to you, "You are too heavy a burden for me to carry alone. 10 The LORD your God has increased
your numbers so that today you are as many as the stars in the sky. 11 May the LORD, the God of your fathers,
increase you a thousand times and bless you as he has promised! 12 But how can I bear your problems and your
burdens and your disputes all by myself ? 13 Choose some wise, understanding and respected men from each of
your tribes, and I will set them over you." 14 You answered me, "What you propose to do is good." 15 So I took the
leading men of your tribes, wise and respected men, and appointed them to have authority over you--as commanders
of thousands, of hundreds, of fifties and of tens and as tribal officials. 16 And I charged your judges at that time: Hear
the disputes between your brothers and judge fairly, whether the case is between brother Israelites or between one of
them and an alien. 17 Do not show partiality in judging; hear both small and great alike. Do not be afraid of any man,
for judgment belongs to God. Bring me any case too hard for you, and I will hear it. 18 And at that time I told you
everything you were to do.
Spies Sent Out
19 Then, as the LORD our God commanded us, we set out from Horeb and went toward the hill country of the
Amorites through all that vast and dreadful desert that you have seen, and so we reached Kadesh Barnea. 20 Then I
said to you, "You have reached the hill country of the Amorites, which the LORD our God is giving us. 21 See, the
LORD your God has given you the land. Go up and take possession of it as the LORD, the God of your fathers, told
you. Do not be afraid; do not be discouraged." 22 Then all of you came to me and said, "Let us send men ahead to
spy out the land for us and bring back a report about the route we are to take and the towns we will come to." 23 The
idea seemed good to me; so I selected twelve of you, one man from each tribe. 24 They left and went up into the hill
country, and came to the Valley of Eshcol and explored it. 25 Taking with them some of the fruit of the land, they
brought it down to us and reported, "It is a good land that the LORD our God is giving us."
Rebellion Against the LORD
26 But you were unwilling to go up; you rebelled against the command of the LORD your God. 27 You grumbled in
your tents and said, "The LORD hates us; so he brought us out of Egypt to deliver us into the hands of the Amorites
to destroy us. 28 Where can we go? Our brothers have made us lose heart. They say, 'The people are stronger and
taller than we are; the cities are large, with walls up to the sky. We even saw the Anakites there.' " 29 Then I said to
you, "Do not be terrified; do not be afraid of them. 30 The LORD your God, who is going before you, will fight for you,
as he did for you in Egypt, before your very eyes, 31 and in the desert. There you saw how the LORD your God
carried you, as a father carries his son, all the way you went until you reached this place." 32 In spite of this, you did
not trust in the LORD your God, 33 who went ahead of you on your journey, in fire by night and in a cloud by day, to
search out places for you to camp and to show you the way you should go. 34 When the LORD heard what you said,
he was angry and solemnly swore: 35 "Not a man of this evil generation shall see the good land I swore to give your
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forefathers, 36 except Caleb son of Jephunneh. He will see it, and I will give him and his descendants the land he set
his feet on, because he followed the LORD wholeheartedly." 37 Because of you the LORD became angry with me
also and said, "You shall not enter it, either. 38 But your assistant, Joshua son of Nun, will enter it. Encourage him,
because he will lead Israel to inherit it. 39 And the little ones that you said would be taken captive, your children who
do not yet know good from bad--they will enter the land. I will give it to them and they will take possession of it. 40 But
as for you, turn around and set out toward the desert along the route to the Red Sea." 41 Then you replied, "We have
sinned against the LORD. We will go up and fight, as the LORD our God commanded us." So every one of you put on
his weapons, thinking it easy to go up into the hill country. 42 But the LORD said to me, "Tell them, 'Do not go up and
fight, because I will not be with you. You will be defeated by your enemies.' " 43 So I told you, but you would not
listen. You rebelled against the LORD's command and in your arrogance you marched up into the hill country. 44 The
Amorites who lived in those hills came out against you; they chased you like a swarm of bees and beat you down
from Seir all the way to Hormah. 45 You came back and wept before the LORD, but he paid no attention to your
weeping and turned a deaf ear to you. 46 And so you stayed in Kadesh many days--all the time you spent there.
Ezra Comes to Jerusalem
1 After these things, during the reign of Artaxerxes king of Persia, Ezra son of Seraiah, the son of Azariah, the son of
Hilkiah, 2 the son of Shallum, the son of Zadok, the son of Ahitub, 3 the son of Amariah, the son of Azariah, the son
of Meraioth, 4 the son of Zerahiah, the son of Uzzi, the son of Bukki, 5 the son of Abishua, the son of Phinehas, the
son of Eleazar, the son of Aaron the chief priest-- 6 this Ezra came up from Babylon. He was a teacher well versed in
the Law of Moses, which the LORD, the God of Israel, had given. The king had granted him everything he asked, for
the hand of the LORD his God was on him. 7 Some of the Israelites, including priests, Levites, singers, gatekeepers
and temple servants, also came up to Jerusalem in the seventh year of King Artaxerxes. 8 Ezra arrived in Jerusalem
in the fifth month of the seventh year of the king. 9 He had begun his journey from Babylon on the first day of the first
month, and he arrived in Jerusalem on the first day of the fifth month, for the gracious hand of his God was on him.
10 For Ezra had devoted himself to the study and observance of the Law of the LORD, and to teaching its decrees
and laws in Israel.
King Artaxerxes' Letter to Ezra
11 This is a copy of the letter King Artaxerxes had given to Ezra the priest and teacher, a man learned in matters
concerning the commands and decrees of the LORD for Israel: 12 Artaxerxes, king of kings, To Ezra the priest, a
teacher of the Law of the God of heaven: Greetings. 13 Now I decree that any of the Israelites in my kingdom,
including priests and Levites, who wish to go to Jerusalem with you, may go. 14 You are sent by the king and his
seven advisers to inquire about Judah and Jerusalem with regard to the Law of your God, which is in your hand. 15
Moreover, you are to take with you the silver and gold that the king and his advisers have freely given to the God of
Israel, whose dwelling is in Jerusalem, 16 together with all the silver and gold you may obtain from the province of
Babylon, as well as the freewill offerings of the people and priests for the temple of their God in Jerusalem. 17 With
this money be sure to buy bulls, rams and male lambs, together with their grain offerings and drink offerings, and
sacrifice them on the altar of the temple of your God in Jerusalem. 18 You and your brother Jews may then do
whatever seems best with the rest of the silver and gold, in accordance with the will of your God. 19 Deliver to the
God of Jerusalem all the articles entrusted to you for worship in the temple of your God. 20 And anything else needed
for the temple of your God that you may have occasion to supply, you may provide from the royal treasury. 21 Now I,
King Artaxerxes, order all the treasurers of Trans-Euphrates to provide with diligence whatever Ezra the priest, a
teacher of the Law of the God of heaven, may ask of you-- 22 up to a hundred talents of silver, a hundred cors of
wheat, a hundred baths of wine, a hundred baths of olive oil, and salt without limit. 23 Whatever the God of heaven
has prescribed, let it be done with diligence for the temple of the God of heaven. Why should there be wrath against
the realm of the king and of his sons? 24 You are also to know that you have no authority to impose taxes, tribute or
duty on any of the priests, Levites, singers, gatekeepers, temple servants or other workers at this house of God. 25
And you, Ezra, in accordance with the wisdom of your God, which you possess, appoint magistrates and judges to
administer justice to all the people of Trans-Euphrates--all who know the laws of your God. And you are to teach any
who do not know them. 26 Whoever does not obey the law of your God and the law of the king must surely be
punished by death, banishment, confiscation of property, or imprisonment. 27 Praise be to the LORD, the God of our
fathers, who has put it into the king's heart to bring honor to the house of the LORD in Jerusalem in this way 28 and
who has extended his good favor to me before the king and his advisers and all the king's powerful officials. Because
the hand of the LORD my God was on me, I took courage and gathered leading men from Israel to go up with me.
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Table of Contents
Judicial ReEngineering – Universal Legal Systems Analysis
V. Rule of Law
VI. Rule of Higher Law
VII. Political Corruption of the Judiciary
VIII. Conflicts of Interest
A. The Role of Judicial Activism
B. Selective Judicial Activism
C. Proper Judicial Activism
Copyright © 2015 The Advocacy Foundation, Inc. All Rights Reserved.
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Judicial Reform is the complete or partial political reform of a country's judiciary. Judicial
reform is often done as a part of wider reform of the country's political system or a legal reform.
Areas of the judicial reform often include; codification of law instead of common law, moving
from an inquisitorial system to an adversarial system, establishing stronger judicial independence
with judicial councils or changes to appointment procedure, establishing mandatory retirement
age for judges or enhancing independence of prosecution.
The Judiciary (also known as the Judicial System or Court
System) is the system of courts that interprets and applies the
law in the name of the state. The judiciary also provides a
mechanism for the resolution of disputes. Under the doctrine of
the separation of powers, the judiciary generally does not make
law (that is, in a plenary fashion, which is the responsibility of
the legislature) or enforce law (which is the responsibility of the
executive), but rather interprets law and applies it to the facts of
each case. This branch of the state is often tasked with ensuring
equal justice under law. It usually consists of a court of final
appeal (called the "Supreme court" or "Constitutional court"),
together with lower courts.
In many jurisdictions the judicial branch has the power to
change laws through the process of judicial review. Courts with
judicial review power may annul the laws and rules of the state
when it finds them incompatible with a higher norm, such as
primary legislation, the provisions of the constitution or international law. Judges constitute a
critical force for interpretation and implementation of a constitution, thus de facto in common
law countries creating the body of constitutional law.
In the US during recent decades the judiciary became active in economic issues related with
economic rights established by constitution because "economics may provide insight into
questions that bear on the proper legal interpretation". Since many countries with transitional
political and economic systems continue treating their constitutions as abstract legal documents
disengaged from the economic policy of the state, practice of judicial review of economic acts of
executive and legislative branches have begun to grow.
In the 1980s, the Supreme Court of India for almost a decade had been encouraging public
interest litigation on behalf of the poor and oppressed by using a very broad interpretation of
several articles of the Indian Constitution.
Budget of the judiciary in many transitional and developing countries is almost completely
controlled by the executive. The latter undermines the separation of powers, as it creates a
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critical financial dependence of the judiciary. The proper national wealth distribution including
the government spending on the judiciary is subject of the constitutional economics. It is
important to distinguish between the two methods of corruption of the judiciary: the state
(through budget planning and various privileges), and the private.
The term "judiciary" is also used to refer collectively to the personnel, such as judges,
magistrates and other adjudicators, who form the core of a judiciary (sometimes referred to as a
"bench"), as well as the staffs who keep the system running smoothly.
After The Revolution
After the French Revolution, lawmakers stopped interpretation of law by judges, and the
legislature was the only body permitted to interpret the law; this prohibition was later overturned
by the Code Napoléon.
In civil law jurisdictions at present, judges interpret the law to about the same extent as in
common law jurisdictions – however it is different from the common law tradition which directly
recognizes the limited power to make law. For instance, in France, the jurisprudence constante
of the Court of Cassation or the Council of State is equivalent in practice with case law.
However, the Louisiana Supreme Court notes the principal difference between the two legal
doctrines: a single court decision can provide sufficient foundation for the common law doctrine
of stare decisis, however, "a series of adjudicated cases, all in accord, form the basis for
jurisprudence constante." Moreover, the Louisiana Court of Appeals has explicitly noted that
jurisprudence constante is merely a secondary source of law, which cannot be authoritative and
does not rise to the level of stare decisis.
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In common law jurisdictions, courts interpret law,
including constitutions, statutes, and regulations. They
also make law (but in a limited sense, limited to the facts
of particular cases) based upon prior case law in areas
where the legislature has not made law. For instance, the
tort of negligence is not derived from statute law in most
common law jurisdictions. The term common law refers
to this kind of law.
In civil law jurisdictions, courts interpret the law, but are
prohibited from creating law, and thus do not issue
rulings more general than the actual case to be judged.
Jurisprudence plays a similar role to case law.
In the United States court system, the Supreme Court is
the final authority on the interpretation of the federal
Constitution and all statutes and regulations created
pursuant to it, as well as the constitutionality of the
various state laws; in the US federal court system, federal
cases are tried in trial courts, known as the US district courts, followed by appellate courts and
then the Supreme Court. State courts, which try 98% of litigation, may have different names and
organization; trial courts may be called "courts of common plea", appellate courts "superior
courts" or "commonwealth courts". The judicial system, whether state or federal, begins with a
court of first instance, is appealed to an appellate court, and then ends at the court of last resort.
In France, the final authority on the interpretation of the law is the Council of State for
administrative cases, and the Court of Cassation for civil and criminal cases.
In the People's Republic of China, the final authority on the interpretation of the law is the
National People's Congress.
Other countries such as Argentina have mixed systems that include lower courts, appeals courts,
a cassation court (for criminal law) and a Supreme Court. In this system the Supreme Court is
always the final authority, but criminal cases have four stages, one more than civil law does. On
the court sits a total of nine justices. This number has been changed several times.
Japan’s process for selecting Judges is longer and more stringent than the process in the United
States and in Mexico. Assistant judges are appointed from those who have completed their
training at the "Legal Training and Research Institute" located in Wako City. Once appointeid,
assistant judges still may not qualify to sit alone until they have served for five years, and have
been appointed by the Supreme Court. Judges require ten years of experience in practical affairs,
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public prosecutor, or practicing attorney. In the Japanese Judicial Branch there is the Supreme
Court located in Japan, eight high courts, fifty district courts, fifty family courts, and 438
summary courts. In difference, Mexican Supreme Court Justices are appointed by the president,
and then are approved by the Senate to serve for a life term. Other justices are appointed by the
Supreme Court and serve for six years. Federal courts consist of the Supreme Court with 21
magistrates, 32 circuit tribunals and 98 district courts. The Supreme Court of Mexico is located
in "Mexico City. Supreme Court Judges must be of ages 35 to 65 and hold a law degree during
the five years preceding their nomination. In the United States Supreme Court, justices are
appointed by the president and approved by the Senate. As in Mexico, justices serve for a life
term or until retirement. The Supreme Court of the United States is located in "Washington
D.C". The Federal court system consists of 94 federal judicial districts. The 94 districts are then
divided into twelve regional circuits. The United States consist of five different types of courts
that are considered subordinate to the Supreme Court, U.S bankruptcy courts, U.S Courts of
Appeal for the federal circuit, U.S Court of International Trade, U.S Courts of Appeal, and U.S
The Supreme Court
[The] supreme court is the highest court within the hierarchy of many legal jurisdictions. Other
descriptions for such courts include court of last resort, instance court, judgment court, apex
court, and highest court of appeal. Broadly speaking, the decisions of a supreme court are not
subject to further review by any other court. Supreme courts typically function primarily as
appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level
However, not all highest courts are named as such. Civil law states do not tend to have singular
highest courts. Additionally, the highest court in some jurisdictions is not named the "Supreme
Court", for example, the High Court of Australia; this is because decisions by the High Court
could formerly be appealed to the Privy Council. In a few places, the court named the "Supreme
Court" is not in fact the highest court; examples include the New York Supreme Court, which is
superseded by the New York Court of Appeals, and the former Supreme Court of Judicature of
England and Wales.
Some countries have multiple "supreme courts" whose respective jurisdictions have different
geographical extents, or which are restricted to particular areas of law. In particular, countries
with a federal system of government typically have both a federal supreme court (such as the
Supreme Court of the United States), and supreme courts for each member state (such as the
Supreme Court of Nevada), with the former having jurisdiction over the latter only to the extent
that the federal constitution extends federal law over state law. Jurisdictions with a civil law
system often have a hierarchy of administrative courts separate from the ordinary courts, headed
by a supreme administrative court as it the case in the Netherlands. A number of jurisdictions
also follow the "Austrian" model of a separate constitutional court (first developed in the
Czechoslovak Constitution of 1920).
Within the British Empire, the highest court within a colony was often called the "Supreme
Court", even though appeals could be made from that court to the United Kingdom's Privy
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Council (based in London). A number of Commonwealth jurisdictions retain this system, but
many others have reconstituted their own highest court as a court of last resort, with the right of
appeal to the Privy Council being abolished.
In jurisdictions using a common law system, the doctrine of stare decisis applies, whereby the
principles applied by the supreme court in its decisions are binding upon all lower courts; this is
intended to apply a uniform interpretation and implementation of the law. In civil law
jurisdictions the doctrine of stare decisis is not generally considered to apply, so the decisions of
the supreme court are not necessarily binding beyond the immediate case before it; however, in
practice the decisions of the supreme court usually provide a very strong precedent, or
jurisprudence constante, for both itself and all lower courts.
In the United States
The Supreme Court of the United States, established in 1789, is the highest Federal
court in the United States, with powers of judicial review first asserted in Calder v.
Bull (1798) in Justice Iredell's dissenting opinion. The power was
later given binding authority by Justice Marshall in Marbury v.
Madison (1803). There are currently nine seats on the US
Each U.S. state has a state supreme
court, which is the highest authority
interpreting that state's law and administering that state's judiciary.
Two states, Oklahoma and
Texas, each have two separate
highest courts that respectively
specialize in criminal cases and
civil cases. Although Delaware has a
specialized court, the Court of
Chancery, to hear
cases in equity, it is
not a supreme court because the
Delaware Supreme Court
has appellate jurisdiction over
The titles of
court vary, which can
cause confusion between
jurisdictions because one state may use a name for its highest court that another uses
for a lower court. In New York, Maryland, and the District of Columbia the highest
court is called the
Court of Appeals,
a name used by many states for
their intermediate appellate courts. Further, trial courts of general jurisdiction in New York are
called the Supreme Court, and the intermediate appellate court is called the Supreme Court,
Appellate Division. In West Virginia, the highest court of the state is the Supreme Court of
Appeals. In Maine and Massachusetts the highest court is styled the "Supreme Judicial Court";
the last is the oldest appellate court of continuous operation in the Western Hemisphere.
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Common Law Countries
In Australia, the High Court of Australia became the court of last resort with the passing of the
Australia Act in 1986. This act abolished the last rights of appeal to the Privy Council. Each state
and territory has its own Supreme Court, which is the highest court in that state/territory. This
leads to some confusion among those from other jurisdictions as the term "supreme court" seems
to refer to the court of last resort. The reason that the High Court of Australia is not named the
"supreme court" is purely historical. Before the federation of the Australian colonies as states of
Australia (in 1901), each colony had its own independent judicial system with a supreme court as
the highest court physically within the colony (with a right of appeal to the Privy Council). On
federation, the constitution provided for the establishment of a federal "supreme court", to be
named the "High Court" which could hear appeals from the state Supreme Courts. With the
exception of the Australian Capital Territory, each state's Supreme Court is divided into two
divisions: the Trial Division and the Court of Appeal. Appeals from the ACT Supreme Court are
heard in the High Court of Australia. The current Chief Justice of the High Court is Robert
The Supreme Court of Bangladesh is created by the provisions of the Constitution of
Bangladesh, 1972. There are two Divisions of the Supreme Court, i.e. (a) Appellate Division and
(b) High Court Division. Appellate Division is the highest Court of Appeal and usually does not
exercise the powers of a court of first instance. Whereas, the High Court Division is a Court of
first instance in company and admiralty matters. The Supreme Court of Bangladesh is the
protector and guardian of Bangladesh Constitution.
The judgements of Appellate Division of Bangladesh Supreme Court are accessible in the
Chancery Law Chronicles.
In Canada, the Supreme Court of Canada was established in 1875 but only became the highest
court in the country in 1949 when the right of appeal to the Judicial Committee of the Privy
Council was abolished. This court hears appeals of decisions made by courts of appeal from the
provinces and territories and appeals of decisions made by the Federal Court of Appeal. The
court's decisions are final and binding on the federal courts and the courts from all provinces and
territories. The title "Supreme" can be confusing because, for example, The Supreme Court of
British Columbia does not have the final say and controversial cases heard there often get
appealed in higher courts - it is in fact one of the lower courts in such a process.
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In Hong Kong, the Supreme Court of Hong Kong (now known as the High Court of Hong Kong)
was the final court of appeal during its colonial times which ended with transfer of sovereignty in
1997. The final adjudication power, as in any other British Colonies, rested with the Judicial
Committee of the Privy Council (JCPC) in London, United Kingdom. Now the power of final
adjudication is vested in the Court of Final Appeal created in 1997. Under the Basic Law, its
constitution, the territory remains a common law jurisdiction. Consequently, judges from other
common law jurisdictions (including England and Wales) can be recruited and continue to serve
in the judiciary according to Article 92 of the Basic Law. On the other hand, the power of
interpretation of the Basic Law itself is vested in the Standing Committee of the National
People's Congress (NPCSC) in Beijing (without retroactive effect), and the courts are authorised
to interpret the Basic Law when trying cases, in accordance with Article 158 of the Basic Law.
This arrangement became controversial in light of the right of abode issue in 1999, raising
concerns for judicial independence.
In India, the Supreme Court of India was created on January 28, 1950 after the adoption of the
Constitution. Article 141 of the Constitution of India states that the law declared by Supreme
Court is to be binding on all Courts within the territory of India. It is the highest court in India
and has ultimate judicial authority within India to interpret the Constitution and decide questions
of national law (including local bylaws). The Supreme Court is vested with the power of judicial
review to ensure the application of the rule of law. Besides, unlike most other countries, Indian
Constitution places the supreme court (judiciary) co-equal with the legislative and the executive
wings. Therefore the judiciary is neither superior nor inferior to the legislative or the executive.
With reference to the State of Jammu and Kashmir (J&K) it would be relevant to note that, J&K
has for various historical reasons a special status vis-a-vis the other states of India. Article 370 of
the Constitution of India carves out certain exceptions for J&K. The Constitution of India is not
fully applicable to the state of J&K. This is the effect of Article 370. The Constitution of India is
applicable to the state of J&K with various modifications and exceptions. These are provided for
in the Constitution (Application to Jammu and Kashmir) Order, 1954. Also, Jammu and
Kashmir, unlike the other Indian states, also has its own Constitution. Although the Constitution
of India is applicable to Jammu and Kashmir with numerous modifications, the Constitution
(Application to Jammu and Kashmir) Order, 1954 makes Article 141 applicable to the state of
J&K and hence law declared by Supreme Court is equally applicable to all courts of J&K
including the High Court.
The Supreme Court is the highest court in Ireland. It has authority to interpret the constitution,
and strike down laws and activities of the state that it finds to be unconstitutional. It is also the
highest authority in the interpretation of the law. Constitutionally it must have authority to
interpret the constitution but its further appellate jurisdiction from lower courts is defined by law.
The Irish Supreme Court consists of its presiding member, the Chief Justice, and seven other
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judges. Judges of the Supreme Court are appointed by the President in accordance with the
binding advice of the Government. The Supreme Court sits in the Four Courts in Dublin.
Israel's Supreme Court is at the head of the court system in the State of Israel. It is the highest
judicial instance. The Supreme Court sits in Jerusalem. The area of its jurisdiction is the entire
State. A ruling of the Supreme Court is binding upon every court, other than the Supreme Court
itself. The Israeli supreme court is both an appellate court and the high court of justice. As an
appellate court, the Supreme Court considers cases on appeal (both criminal and civil) on
judgments and other decisions of the District Courts. It also considers appeals on judicial and
quasi-judicial decisions of various kinds, such as matters relating to the legality of Knesset
elections and disciplinary rulings of the Bar Association. As the High Court of Justice (Hebrew:
Beit Mishpat Gavoha Le'Zedek הובג טפשמ תיב ;קדצל also known by its initials as Bagatz ,(ץ"גב the
Supreme Court rules as a court of first instance, primarily in matters regarding the legality of
decisions of State authorities: Government decisions, those of local authorities and other bodies
and persons performing public functions under the law, and direct challenges to the
constitutionality of laws enacted by the Knesset. The court has broad discretionary authority to
rule on matters in which it considers it necessary to grant relief in the interests of justice, and
which are not within the jurisdiction of another court or tribunal. The High Court of Justice
grants relief through orders such as injunction, mandamus and Habeas Corpus, as well as through
declaratory judgments. The Supreme Court can also sit at a further hearing on its own judgment.
In a matter on which the Supreme Court has ruled - whether as a court of appeals or as the High
Court of Justice - with a panel of three or more justices, it may rule at a further hearing with a
panel of a larger number of justices. A further hearing may be held if the Supreme Court makes a
ruling inconsistent with a previous ruling or if the Court deems that the importance, difficulty or
novelty of a ruling of the Court justifies such hearing. The Supreme Court also holds the unique
power of being able to order "trial de novo" (a retrial).
In Nauru, there is no single highest court for all types of cases. The Supreme Court has final
jurisdiction on constitutional matters, but any other case may be appealed further to the
Appellate Court. In addition, an agreement between Nauru and Australia in 1976 provides for
appeals from the Supreme Court of Nauru to the High Court of Australia in both criminal and
civil cases, with the notable exception of constitutional cases.
In New Zealand, the right of appeal to the Privy Council was abolished following the passing of
the Supreme Court Act (2003). The new Supreme Court of New Zealand was officially
established at the beginning of 2004, although it did not come into operation until July. The High
Court of New Zealand was until 1980 known as the Supreme Court.
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The Supreme Court has been the apex court for Pakistan since the declaration of the republic in
1956 (previously the Privy Council had that function). The Supreme Court has the final say on
matters of constitutional law, federal law or on matters of mixed federal and provincial
competence. It can hear appeals on matters of provincial competence only if a matter of a
constitutional nature is raised.
With respect to Pakistan's territories (i.e. FATA, Azad Kashmir, Northern Areas and Islamabad
Capital Territory (ICT)) the Supreme Court's jurisdiction is rather limited and varies from
territory to territory; it can hear appeals only of a constitutional nature from FATA and Northern
Areas, while ICT generally functions the same as provinces. Azad Kashmir has its own courts
system and the constitution of Pakistan does not apply to it as such; appeals from Azad Kashmir
relate to its relationship with Pakistan.
The provinces have their own courts system, with the High Court as the apex court, except
insofar as where an appeal can go to the Supreme Court as mentioned above.
The Supreme Court of the United Kingdom was established by the Constitutional Reform Act
2005 with effect from 1 October 2009 and assumed the judicial functions of the House of Lords,
which include final appellate jurisdiction in civil cases throughout the UK, and in criminal cases
in Northern Ireland, England and Wales. In the United Kingdom, there are separate legislatures
with limited devolved powers over Wales, Northern Ireland and Scotland: devolution issues
under the Scotland Act 1998, Government of Wales Act and Northern Ireland Act were
transferred from the Judicial Committee of the Privy Council to the new Supreme Court by the
Constitutional Reform Act.
In respect of Community Law the Supreme Court is subject to the decisions of the European
Court of Justice. Since there can be no appeal from the Supreme Court, there is an interlocutory
procedure by which the Supreme Court may refer to the European Court questions of European
law which arise in cases before it, and obtain a definitive ruling before the Supreme Court gives
The Supreme Court shares its members and accommodation at the Middlesex Guildhall with the
Judicial Committee of the Privy Council which hears final appeals from certain smaller
Commonwealth countries, admiralty cases, and certain appeals from the ecclesiastical courts and
statutory private jurisdictions, such as professional and academic bodies.
(The Constitutional Reform Act renamed the rarely cited Supreme Court of Judicature for
England and Wales as the Senior Courts of England and Wales).
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Civil Law Countries
The Roman law and the Corpus Juris Civilis are generally held to be the historical model for
civil law. From the late 18th century onwards, civil law jurisdictions began to codify their laws,
most of all in civil codes.
In Austria, the Austrian Constitution of 1920 (based on a draft by Hans Kelsen) introduced
judicial review of legislative acts for their constitutionality. This function is performed by the
Constitutional Court (Verfassungsgerichtshof), which is also charged with the review of
administrative acts on whether they violate constitutionally guaranteed rights. Other than that,
administrative acts are reviewed by the Administrative Court (Verwaltungsgerichtshof). The
Supreme Court (Oberste Gerichtshof (OGH)), stands at the top of Austria's system of "ordinary
courts" (ordentliche Gerichte) as the final instance in issues of private law and criminal law.
In Brazil, the Supreme Federal Tribunal is the highest court. It is both the constitutional court
and the court of last resort in Brazilian law. It only reviews cases that may be unconstitutional or
final habeas corpus pleads for criminal cases. It also judges, in original jurisdiction, cases
involving members of congress, senators, ministers of state, members of the high courts and the
President and Vice-President of the Republic. The Superior Court of Justice reviews State and
Federal Circuit courts decisions for civil law and criminal law cases, when dealing with federal
law or conflicting rulings. The Superior Labour Tribunal reviews cases involving labour law.
The Superior Electoral Tribunal is the court of last resort of electoral law, and also oversees
general elections. The Superior Military Tribunal is the highest court in matters of federal
Republic of China
In the Republic of China, there are three different courts of last resort:
Supreme Court of the Republic of China ( 中 華 民 國 最 高 法 院 ): civil and criminal cases.
Supreme Administrative Court of the Republic of China ( 中 華 民 國 最 高 行 政 法 院 ):
Council of Grand Justices ( 大 法 官 會 議 ): interpretation of the Constitution, interpretation
of laws and regulations, dissolution of political parties in violation of the Constitution,
trial of impeachments against the President or Vice President.
The Council of Grand Justices, consisting of 15 justices and mainly dealing with constitutional
issues, is the counterpart of constitutional courts in some countries.
All three courts are directly under the Judicial Yuan, whose president also serves as Chief Justice
in the Council of Grand Justices.
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In Croatia, the supreme jurisdiction is given to the Supreme Court, which secures a uniform
application of laws. The Constitutional Court exists to verify constitutionality of laws and
regulations, as well as decide on individual complaints on decisions on governmental bodies. It
also decides on jurisdictional disputes between the legislative, executive and judicial branches.
In Denmark, all ordinary courts have original jurisdiction to hear all types of cases, including
cases of a constitutional or administrative nature. As a result, there exists no special
constitutional court, and therefore final jurisdiction is vested with the Danish Supreme Court
(Højesteret) which was established 14 February 1661 by king Frederik III.
In France, supreme appellate jurisdiction is divided among three judicial bodies:
for judicial cases, i.e., civil or criminal matters: Court of Cassation (Cour de cassation)
for administrative cases: Council of State (Conseil d'État)
constitutional challenges of statutory laws: Constitutional Council (Conseil
When there is jurisdictional dispute between judicial and administrative courts: the Court of
Arbitration (Tribunal des conflits), which is empanelled half from the Court of Cassation and
half from the Council of State and presided over by the Minister of Justice, is called together to
settle the dispute or hand down a final decision.
The High Court (Haute Cour) exists only to impeach the President of the French Republic in
case of "breach of his duties patently incompatible with his continuing in office". Since a
constitutional amendment of 2007, the French Constitution states that the High Court is
composed of all members of both Houses of Parliament. As of 2012, it has never been convened.
In Germany, there is no single supreme court.
Final interpretation of the German Constitution, the Grundgesetz, is the task of the
Bundesverfassungsgericht (Federal Constitutional Court), which is the de facto highest German
court as it can declare federal and state legislation immediately ineffective, and has the power to
overrule decisions of all other federal courts despite not being a regular court of appeals in the
German court system.
In civil and criminal cases, the Bundesgerichtshof is at the top of the hierarchy of courts. The
other branches of the German judicial system each have their own appellate systems, each
topped by a supreme court; these are the Bundessozialgericht for social security, the
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Bundesarbeitsgericht for employment and labour, the Bundesfinanzhof for taxation, and the
Bundesverwaltungsgericht for administrative law. The so-called Gemeinsamer Senat der
Obersten Gerichtshöfe (Joint Senate of the Supreme Courts), is not a supreme court in itself, but
an ad-hoc body that is convened only in when one supreme court intends to diverge from another
supreme court's legal opinion. As the courts have well-defined areas of responsibility, this
situation rarely arises, and so the Joint Senate only gathers rather rarely, and only to consider
matters which are mostly definitory.
In the Netherlands, the Supreme Court of the Netherlands is the highest. Its decisions, known as
"arresten", are absolutely final. The court is banned from testing legislation against the
constitution, pursuant to the principle of the sovereignty of the States-General; the court can,
however, test legislation against treaties. Also, the ordinary courts in the Netherlands, including
the Hoge Raad, do not deal with administrative law, which is dealt with in separate
administrative courts, the highest of which is the Council of State (Raad van State)
The Supreme Court of Iceland (Icelandic: Hæstiréttur Íslands, lit. Highest Court of Iceland) was
founded under Act No. 22/1919 and held its first session on 16 February 1920. The Court holds
the highest judicial power in Iceland, where the court system has two levels.
Italy follows the French system of different supreme courts.
The Italian court of last resort for most disputes is the Corte Suprema di Cassazione. There is
also a separate constitutional court, the Corte costituzionale, which has a duty of judicial review,
and which can strike down legislation as being in conflict with the Constitution.
In Japan, the Supreme Court of Japan is called 最 高 裁 判 所 (Saikō-Saibansho; called 最 高 裁
Saikō-Sai for short), located in Chiyoda, Tokyo, and is the highest court in Japan. It has ultimate
judicial authority within Japan to interpret the Constitution and decide questions of national law
(including local by-laws). It has the power of judicial review (i.e., it can declare Acts of Diet and
Local Assembly, and administrative actions, unconstitutional).
In Luxembourg, challenges on the conformity of the law to the Constitution are brought before
the Cour Constitutionnelle (Constitutional Court). — The most used and common procedure to
present these challenges is by way of the "question préjudicielle" (prejudicial question).
The Court of last resort for civil and criminal proceedings is the "Cour de Cassation".
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For administrative proceedings the highest court is the "Cour Administrative" (Administrative
The supreme court of Macau is the Court of Final Appeal (Portuguese: Tribunal de Última
Instância; Chinese: 澳 門 終 審 法 院 ).
While the Philippines is generally considered a civil law nation, its Supreme Court is heavily
modelled after the American Supreme Court. This can be attributed to the fact that the
Philippines was colonized by both Spain and the United States, and the system of laws of both
nations strongly influenced the development of Philippine laws and jurisprudence. Even as the
body of Philippine laws remain mostly codified, the Philippine Civil Code expressly recognizes
that decisions of the Supreme Court "form part of the law of the land", belonging to the same
class as statutes. The 1987 Philippine Constitution also explicitly grants to the Supreme Court
the power of judicial review over laws and executive actions. The Supreme Court is composed of
1 Chief Justice and 14 Associate Justices. The court sits either en banc or in divisions, depending
on the nature of the case to be decided.
In Portugal, there are several supreme courts, each with a specific jurisdition:
The Supreme Court of Justice (Supremo Tribunal de Justiça) - for judicial (civil and
The Constitutional Court (Tribunal Constitucional) - for the constitutional matters;
The Supreme Administrative Court (Supremo Tribunal Administrativo) - for
administrative and fiscal matters;
The Court of Auditors (Tribunal de Contas) - for auditing the public expenditure.
Founded by papal bull in 1532, the Court of Session is the supreme civil court of Scotland, and
the High Court of Justiciary is the supreme criminal court. However, the absolute highest court
(excluding criminal matters) is the Supreme Court of the United Kingdom.
Spanish Supreme Court is the highest court for all cases in Spain (both private and public). Only
those cases related to human rights can be appealed at the Constitutional Court (which also
decides about acts accordance with Spanish Constitution).
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In Spain, high courts cannot create binding precedents; however, lower rank courts usually
observe Supreme Court interpretations. In most private law cases, two Supreme Court
judgements supporting a claim are needed to appeal at the Supreme Court.
Five sections form the Spanish Supreme court:
Section one judges private law cases (including commercial law).
Section two decides about criminal appeals.
Section three judges administrative cases and controls government normative powers.
Section four is dedicated to labour law.
Section five is dedicated to military justice.
In Sweden, the Supreme Court and the Supreme Administrative Court respectively function as
the highest courts of the land. The Supreme Administrative Court considers cases concerning
disputes between individuals and administrative organs, as well as disputes among administrative
organs, while the Supreme Court considers all other cases. The judges are appointed by the
Government. In most cases, the Supreme Courts will only grant leave to appeal a case
(prövningstillstånd) if the case involves setting a precedent in the interpretation of the law.
Exceptions are issues where the Supreme Court is the court of first instance. Such cases include
an application for a retrial of a criminal case in the light of new evidence, and prosecutions made
against an incumbent minister of the Government for severe neglect of duty. If a lower court has
to try a case which involves a question where there is no settled interpretation of the law, it can
also refer the question to the relevant Supreme Court for an answer.
In Switzerland, the Federal Supreme Court of Switzerland is the final court of appeals. Due to
Switzerland's system of direct democracy, it has no authority to review the constitutionality of
federal statutes, but the people can strike down a proposed law by referendum. According to
settled case law, however, the Court is authorised to review the compliance of all Swiss law with
certain categories of international law, especially the European Convention of Human Rights.
In Sri Lanka, the Supreme Court of Sri Lanka was created in 1972 after the adoption of a new
Constitution. The Supreme Court is the highest and final superior court of record and is
empowered to exercise its powers, subject to the provisions of the Constitution. The court rulings
take precedence over all lower Courts. The Sri Lanka judicial system is complex blend of both
common-law and civil-law. In some cases such as capital punishment, the decision may be
passed on to the President of the Republic for clemency petitions. However, when there is 2/3
majority in the parliament in favour of president (as with present), the supreme court and its
judges' powers become nullified as they could be fired from their positions according to the
Constitution, if the president wants. Therefore, in such situations, Civil law empowerment
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In South Africa, the Supreme Court of Appeal (SCA) was created in 1994 and replaced the
Appellate Division of the Supreme Court of South Africa as the highest court of appeal in nonconstitutional
matters. The SAC is subordinate to the Constitutional Court, which is the highest
court in matters involving the interpretation of the Constitution.
In the Soviet Union
In most nations with constitutions modelled after the Soviet Union, the legislature was given the
power of being the court of last resort. In the People's Republic of China, the final power to
interpret the law is vested in the Standing Committee of the National People's Congress
(NPCSC). This power includes the power to interpret the basic laws of Hong Kong and Macau,
the constitutional documents of the two special administrative regions which are common law
and Portuguese-based legal system jurisdictions respectively. This power is a legislative power
and not a judicial one in that an interpretation by the NPCSC does not affect cases which have
already been decided.
International Standards for Judicial Appointments
Japan’s process for selecting Judges is longer and more stringent than the process in the United
States and in Mexico. Assistant judges are appointed from those who have completed their
training at the "Legal Training and Research Institute" located in Wako City. Once appointeid,
assistant judges still
may not qualify to
sit alone until they
have served for five
years, and have been appointed by
the Supreme Court.
Judges require ten
years of experience
in practical affairs,
public prosecutor, or practicing
attorney. In the Japanese Judicial
Branch there is the Supreme Court
located in Japan,
eight high courts,
fifty district courts,
fifty family courts,
and 438 summary
courts. In difference,
Mexican Supreme Court Justices are
appointed by the
president, and then
are approved by the
Senate to serve for a
life term. Other justices are appointed by the Supreme Court and serve for six years. Federal
courts consist of the Supreme Court with 21 magistrates, 32 circuit tribunals and 98 district
courts. The Supreme Court of Mexico is located in "Mexico City. Supreme Court Judges must be
of ages 35 to 65 and hold a law degree during the five years preceding their nomination. In the
United States Supreme Court, justices are appointed by the president and approved by the
Senate. As in Mexico, justices serve for a life term or until retirement. The Supreme Court of the
United States is located in "Washington D.C". The Federal court system consists of 94 federal
judicial districts. The 94 districts are then divided into twelve regional circuits. The United States
consist of five different types of courts that are considered subordinate to the Supreme Court,
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U.S bankruptcy courts, U.S Courts of Appeal for the federal circuit, U.S Court of International
Trade, U.S Courts of Appeal, and U.S District Courts.
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Judicial Independence is the concept that the
judiciary needs to be kept away from the other
branches of government. That is, courts should
not be subject to improper influence from the
other branches of government, or from private or
partisan interests. Judicial Independence is vital
and important to the idea of separation of
Different countries deal with the idea of judicial
independence through different means of
judicial selection, or choosing judges. One way
to promote judicial independence is by granting
life tenure or long tenure for judges, which
ideally frees them to decide cases and make
rulings according to the rule of law and judicial
discretion, even if those decisions are politically unpopular or opposed by powerful interests.
This concept can be traced back to 18th century England.
In some countries, the ability of the judiciary to check the legislature is enhanced by the power of
judicial review. This power can be used, for example, by mandating certain action when the
judiciary perceives that a branch of government is refusing to perform a constitutional duty, or
by declaring laws passed by the legislature unconstitutional.
Constitutional economics studies issues such as the proper distribution of national wealth
including government spending on the judiciary. In transitional and developing countries,
spending on the judiciary may be controlled by the executive. This undermines the principle of
judicial independence because it creates a financial dependence of the judiciary on the executive.
It is important to distinguish between two methods of corruption of the judiciary: the state
(through budget planning and privileges) being the most dangerous, and private. State corruption
of the judiciary can impede the ability of businesses to optimally facilitate the growth and
development of a market economy.
National and International Developments
The development judicial independence has been argued to involve a cycle of national law
impacting international law, and international law subsequently impacting national law.  This is
said to occur in three phases: the first phase is characterized by the domestic development of the
concept of judicial independence, the second by the seeping of this concept into the international
scene, and the third by the re-domestication of newly reformulated international principles of
judicial independence, which may have significant and dramatic results.
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A notable illustration of this cycle of impacting and reimpacting is that of the United Kingdom.
The first phase occurred in England with the original conception of judicial independence in the
Act of Settlement in 1701.  The second phase was evident when England’s concepts regarding
judicial independence first entered the international scene, and from there moved into the
domestic arenas of other countries; for instance, England served as the theoretical model for
Montesquieu’s separation of powers doctrine  and the Founding Fathers of the US Constitution
used England as their dominant model in formulating the Constitution’s Article III, which is the
foundation of American judicial independence.  Other common law countries, including
Canada, Australia, and India, also adopted the British model of judicial independence. 
In recent decades the third phase of judicial independence has come to play in the UK,  as it has
been significantly influenced by judicial independence principles developed by international
human rights constitutional documents. The European Court of Human Rights (ECtHR) has had
a significant impact on the conceptual analysis of judicial independence in England and
Scotland. This process began in the 1990s with the ECtHR hearing UK cases, and later this
process found its dramatic expression in the application of the ECtHR in the British Human
Rights Act, which came into force in 2000. 
Where British national law had previously impacted the international development of judicial
independence, the British Constitutional Reform Act of 2005  signaled a shift, with
international law now impacting British domestic law. The Constitutional Reform Act
dramatically reformed government control over the administration of justice in England and
Wales; importantly, it discontinued the aberrant position of the Lord Chancellor, one of the
country’s oldest constitutional offices, who was entrusted with a combination of legislative,
executive, and judicial capacities.  The Lord Chancellor served as speaker of the Upper House
of Parliament, the House of Lords; as a member of the executive branch and member of the
senior cabinet; and as the head of the judiciary. Historically, the appellate function had a
connection with the executive branch due to the types of cases typically heard – impeachment
and the hearing of felony charges against peers.  The Constitutional Reform Act established
new lines of demarcation between the Lord Chancellor and the judiciary, transferring all the
judicial functions to the judiciary and entrusting the Lord Chancellor only with what are
considered administrative and executive matters. In addition, the Constitutional Reform Act
replaced the Lord Chancellor by the Lord Chief Justice as head of the judiciary, separated the
judicial Appellate Committee of the House of Lords from the legislative parliament, reforming it
as the Supreme Court, and creating a Judicial Appointments Commission.  The creation of the
Supreme Court was important, for it finally separated the highest court of appeal from the House
of Lords. 
Thus, the United Kingdom, where the first phase of judicial independence began over three
hundred years ago, illustrates vividly the mutual impacts of national and international law and
jurisprudence in the area of judicial independence. It demonstrates a cycle of mutual normative
impacts and cross-conceptual fertilizations. In this process, concepts and ideas have become
enriched as they have been implemented in successive judicial and political systems, as each
system has enhanced and deepened the concepts and ideas it actualized. In addition to the UK,
similar developments of conceptual cross-fertilization can be seen internationally, for example in
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EU law,  in civil law countries such as Austria, and in other common law jurisdictions
including Canada. 
The International Association of Judicial Independence and World Peace produced the Mt.
Scopus International Standards of Judicial Independence between 2007 and 2012. These built on
the same association's New Delhi Minimum Standards on Judicial independence adopted in 1982
and their Montréal Universal Declaration on the Independence of Justice in 1983. Other
influences they cite for the standards include the UN Basic Principles of Judicial Independence
from 1985, the Burgh House Principles of Judicial Independence in International Law (for the
international judiciary), Tokyo Law Asia Principles, Council of Europe Statements on judicial
independence (particularly the Recommendation of the Committee of Ministers to Member
States on the independence, efficiency and role of judges), the Bangalore Principles of Judicial
Conduct 2002, and the American Bar Association's revision of its ethical standards for judges. 
The Justice System
In recent years, the principle of Judicial Independence has been described as one of the core
values of the justice system.
Under the uncodified British Constitution, there are two important conventions which help to
preserve judicial independence. The first is that the Parliament of the United Kingdom does not
comment on the cases which are before the court. The second is the principle of parliamentary
privilege: that Members of Parliament are protected from prosecution in certain circumstances by
Furthermore, the independence of the judiciary is guaranteed by the Constitutional Reform Act
2005.  In order to try to promote the independence of the judiciary, the selection process is
designed to minimize political interference. The process focuses on senior members of the
judiciary rather than on politicians. Part 2 of the Tribunals, Courts and Enforcement Act 2007
aims to increase diversity among the judiciary.
The pay of judges is determined by an independent pay review body. It will make
recommendations to the government having taken evidence from a variety of sources. The
government accepts these recommendations and will traditionally implement them fully. As long
as judges hold their positions in "good order," they remain in post until they wish to retire or
until they reach the mandatory retirement age of 70.
As of March 2008, the legal profession is self-regulating; it is responsible for implementing and
enforcing its own professional standards and disciplining its own members. In this case, the
bodies are the Bar Council and the Law Society. However, this self-regulation will come to an
end when those bodies themselves come under the regulation of the Legal Standards Board,
composed of non-lawyers, under the Legal Services Act 2007.
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In The United States
Article III of the United States Constitution establishes the federal courts as part of the federal
The Constitution provides that federal judges, including judges of the Supreme Court of the
United States, are appointed by the President "by and with the advice and consent of the Senate."
Once appointed, federal judges:
...both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and
shall, at stated Times, receive for their Services a Compensation which shall not be diminished
during their Continuance in Office.
Federal judges vacate office only upon death, resignation, or impeachment and removal from
office by Congress; only 13 federal judges have ever been impeached. The phrase "during good
behavior" predates the Declaration of Independence. John Adams equated it with quamdiu se
bene gesserint in a letter to the Boston Gazette published on 11 January 1773,  a phrase that
first appeared in section 3 of the Act of Settlement 1701 in England.
The President is free to appoint any person to the federal bench, yet typically he consults with the
American Bar Association,whose Standing Committee on the Federal Judiciary rates each
nominee "Well Qualified," "Qualified" or "Not Qualified."
State courts deal with independence of the judiciary in many ways, and several forms of judicial
selection are used for both trial courts and appellate courts (including state supreme courts),
varying between states and sometimes within states. In some states, judges are elected (sometime
on a partisan ballot, other times on a nonpartisan one), while in others they are appointed by the
governor or state legislature.
The 2000 case of Bush v. Gore, in which a majority of the Supreme Court, including some
appointees of President George H. W. Bush, overruled challenges to the election of the George
W. Bush then pending in the Florida Supreme Court, whose members had all been appointed by
Democratic governors, is seen by many as reinforcing the need for judicial independence, both
with regard to the Florida Supreme Court and the US Supreme Court. This case has focused
increased attention on judicial outcomes as opposed to the traditional focus on judicial
In The Soviet Union
The Judiciary of Russia interprets and applies the law of Russia. It is defined under the
Constitution and law with a hierarchical structure with the Constitutional Court, Supreme Court,
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and Supreme Court of Arbitration at the apex. The district courts are the primary criminal trial
courts, and the regional courts are the primary appellate courts. The judiciary is governed by the
All-Russian Congress of Judges and its Council of Judges, and its management is aided by the
Judicial Department of the Supreme Court, the Judicial Qualification Collegia, the Ministry of
Justice, and the various courts' chairpersons. And although there are many officers of the court,
including jurors, the Prosecutor General remains the most powerful component of the Russian
The judiciary faces many problems and a widespread lack of confidence but has also made much
progress in recent times. There have been serious violations of the accepted separation of powers
doctrine, systematic attempts to undermine jury trials, problems with access to justice, problems
with court infrastructure and financial support, and corruption. But the judiciary has also seen a
fairer and more efficient administration, a strengthening of the rule of law, moves towards a
more adversarial system, and increased utilization of the justice system under Putin.
Russia has a trifurcated court system, with constitutional, ordinary, and commercial courts. The
Constitutional Court of Russia is considered a separate, independent court. The district courts are
the primary criminal trial courts, and the regional courts are the primary appellate courts.
The ordinary courts have a four-tiered hierarchy and are responsible for civil and criminal cases:
the Supreme Court of Russia,
district courts, and
In 1995, the courts sentenced about 1 million people for criminal offenses, and considered 3
million administrative offenses and 2.5 million civil cases.
The Constitutional Court of Russia (Конституционный суд
Российской Федерации) is responsible for cases
concerning conformity with the Constitution, judicial
disputes between 2 or more federal bodies, between a federal
body and a member of the Federation, and between members
of the Federation.  As such, it practices "constitutional
review" (as differentiated from judicial review) and decides
whether federal laws, presidential decrees and directives,
and local constitutions, charters, and laws comply with the
federal constitution, as well as treaties between the national government and a regional
governments and between regional governments.
It is composed of 19 judges, and may sit in plenary sessions but is otherwise divided into 2
chambers.  The Constitutional Court consists of two chambers with 10 and 9 judges
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espectively. The Chairman presides over one of the chambers, the Deputy Chairman presides
over the other chamber.
Constitutionality of laws, disputes concerning competence of governmental agencies,
impeachment of the President of Russia, and Constitutional Court's proposals of legislation must
be dealt with by the plenary session. The Constitutional Court may also submit to the plenary
session any other issue at its discretion.
In general, the court hears cases referred by the President, the Federation Council, the State
Duma, one-fifth of the members of either chamber of the Federal Assembly, the Government, the
Supreme Court, or other bodies of legislative or executive authority.  It also hears complains by
citizens of allegations of constitutional rights violations. 
The Supreme Court of Russia (Верховный суд Российской
Федерации) is the highest court, and supervises inferior
courts of general jurisdiction. It occasionally sits as a court
of first instance in cases where important interests of state
are at issue; in this case it normally consists of a judge and a
jury, but occasionally consists of three judges.
There are 115 members of the Supreme Court. At plenary
sessions the Supreme Court studies the judicial decisions of
lower courts on various topics and adopts resolutions, which
establish recommendations on the interpretation of particular
provisions of law for lower courts for uniform application.
The Presidium of the Russian Supreme Court (Президиум
Верховного Суда Российской Федерации) represents
Russia's final court of appeal. The Presidium consists of
thirteen judges: the Chairman of the Supreme Court, its first
deputy chairman, its six deputy chairmen and five other
Supreme Court judges. Only the Prosecutor General has the right to appeal to the Presidium, and
as a result, very few criminal cases reviewed by the three-judge panels of the Supreme Court
make it to the Presidium. Only 0.4% of criminal cases in 1998 ended with an acquittal in the
The court is divided into several chambers or collegia (коллегия), and each chamber normally
sits with three judges:
civil (коллегии по гражданским);
criminal (коллегии по уголовным);
military (Военной коллегии);
administrative (коллегии по административным); and
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appeals (Апелляционная коллегия; formerly the cassation panel or Кассационная
коллегия), which can review decisions of the other chambers.
There are several entities attached to the Supreme Court. The Academic Consultative Council
(Научно-консультативный совет при Верховном Суде Российской Федерации) assists the
court in various legal and academic matters and comprises members of the Supreme Court itself,
academics, practicing lawyers, and law enforcement officers. The members of the Academic
Consultative Council are elected at plenary sessions of the Supreme Court. The Judicial
Department is responsible for administration of the courts.
Regional courts (also called kray courts and city courts) are the courts at the regional level,
though are not all named as such. This includes the supreme courts of the Republics of Russia,
courts of the krais (territories; краевой суд or kray courts), courts of the oblasts (regions;
областной суд), city courts of the federal cities of Russia (Moscow and Saint Petersburg), courts
of the autonomous oblasts, and courts of the autonomous okrugs.
The courts sit as both courts of first instance and appellate courts. As courts of first instance, they
hear more complex civil cases and serious criminal cases. A judge and a jury, or alternatively 3
judges, hear these cases. As appellate courts, they hear decisions of district courts that have not
yet entered into force, and consist of 3 judges.
District courts (районный суд or городской суд; also called
rayon or raion courts), which were called People's Courts
until 1996, are primarily courts of first instance but
sometimes hear appeals from magistrate courts.  They are
formed in areas (районах or rayons), urban areas (районах
в городах), and cities (городах). Decisions of the court are
appealed to the regional court.
As courts of first instance, they handle criminal cases where imprisonment is for more than 3
years, and consist of 1 judge and a jury where required. As courts of appeal from decisions of the
magistrate courts consisting of 1 justice of the peace, they consist of 1 judge and retry the case.
Arbitration courts (арбитражный суд; also called arbitrazh or commercial courts) hear cases
dealing with a wide matter of contractual issues, such as rights of ownership, contract changes,
performance of obligations, loans, bank accounts, and bankruptcy. They operate independently
of the other courts. The Supreme Court of Arbitration of Russia (also called the Supreme
Commercial Court, the Supreme Arbitrazh Court, or the Supreme Arbitration Court) is the
highest such court, and consists of 1 chairman and 4 deputy chairmen.
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Magistrate courts (мировой суд; also called Justices of the Peace Courts) handle criminal cases
where imprisonment is for less than three years such as petty hooliganism, public drunkenness,
and serious traffic violations of a non-criminal nature, minor civil cases such as simple divorces,
some property cases, disputes over land, and some labor cases, as well as some federal
administrative law cases. The magistrate courts were expected to hear two-thirds of all civil
cases and close to 100,000 criminal cases. It consists of one magistrate or justice of the peace.
Pursuant to the 2002 Federal Law on Organs of the Judicial
Community, which is the legal basis for the judicial organs
of self-government, the All-Russian Congress of Judges is
the supreme body of the judiciary.  The Congress elects
the members of the Council of Judges, the self-government
body of the judiciary.
The Judicial Department of the Supreme Court of Russia is
responsible for administration of the courts, such as selection and training of judicial candidates,
working with law institutes, and qualifications of judges and other court officers. It is expected to
enhance the independence of the judicial branch. It also supports the Council of Judges and the
Supreme Qualifying Collegium.
Judicial Qualification Collegia are bodies of judicial self-regulation that were established at the
regional (Judicial Qualification Collegia) and national (Supreme Qualification Collegium) levels.
They play a key role in the appointment, promotion and dismissal of judges.
Some judges serve as a court chairperson. The court chairperson is solely responsible for the
allocation of cases to judges, has considerable powers in the matters of appointment, and makes
the initial recommendation for disciplinary measures, in particular dismissal.
Judges are appointed by the Federation Council, and serve for life. Candidates are recommended
by the Qualification Collegia / Supreme Qualification Collegium to the President, who in turn
recommends candidates to the Federation Council.
The judges of the Constitutional Court are nominated by the President and appointed by the
Federation Council for 12 years, and the judges must be at least 40 years old and must retire at
70 years old. The also must have served as a lawyer for at least 15 years and have a "recognized
high qualification" (quotation from Constitutional Court Act) in law.
The Russian Minister of Justice is responsible for appointing judges to regional and city courts;
however, in practice, many appointments below the national level still are made by the chief
executives of subnational jurisdictions.
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Judges of the district courts are appointed by the President. A candidate must be at least 25 years
old, is expected to have received a higher legal education (commonly a specialist degree), have
at least 5 years of experience in the legal profession, and pass an examination from the Ministry
Justices of the peace are usually appointed by the regional legislature, but may also be elected.
Justices of the peace require most of the same qualifications.
The Prosecutor General of Russia is the highest prosecutor in Russia, and both he and his office
are independent from the executive, legislative and judicial branches of power. The Prosecutor
General remains the most powerful component of the Russian judicial system.
The Prosecutor General is entrusted with:
1. prosecution in court on behalf of the State;
2. representation of the interests of a citizen or of the State in court in cases determined by
3. supervision of the observance of laws by bodies that conduct detective and search
activity, inquiry and pre-trial investigation;
4. supervision of the observance of laws in the execution of judicial decisions in criminal
cases, and also in the application of other measures of coercion related to the restraint of
personal liberty of citizens.
The Investigative Committee of Russia, sometimes described as the "Russian FBI", is the main
federal investigating authority in Russia, formed in place of the Investigative Committee of the
Prosecutor General in 2011.
The Prosecutor General is nominated by the President of Russia and appointed by the majority of
Federation Council for a term of five years. If the nomination fails, the President must nominate
another candidate within 30 days. The resignation of the Prosecutor General before the end of his
term should be approved by both a majority of Federation Council and the President.
The Russian legal profession is unregulated, but there have been moves towards unification and
regulation recently. Anyone with a legal education can practice law, but only a member of the
Advokatura (Адвокатура) may practice before a criminal court. Legal education has traditionally
begun with the specialist degree in law (специалист по правоведению). An "advocate" is an
attorney who has demonstrated qualification and belongs to an organizational structure of
advocates specified by law, known as being "called to the bar" in commonwealth countries.
An examination is administered by the qualifications commission of a court for admission to its
Advokatura. To sit for the exam, one must have a higher legal education (commonly a specialist
degree) and either two years of experience in legal work or a training program in a law firm. The
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exam is both written and oral, but the main test is oral. The qualifications commission is
composed of seven advocates, two judges, two representatives of the regional legislature, and
two representatives of the Ministry of Justice.
In 1988 there were 25,000 lawyers,  and in 2002 there were 47,000 defense lawyers in all of
A juror must be 25 years old, legally competent, and without a criminal record.
Regulation of Russian Law
The judiciary is primarily regulated by the Constitution of Russia, the Code of Criminal
Procedure, and the 1996 Federal Constitutional Law on the Judicial System of the Russian
Federation. The Constitution states that the judicial branch is independent of the legislative and
executive branches, but there have been serious violations of the accepted separation of powers
There is no usage of precedent, as used in common law legal systems. As such, the law on appeal
may depend on the composition of the chamber deciding the appeal. A chamber normally
consists of 3 judges, out of the dozens of judges within the court (19 in the Constitutional Court,
115 in the Supreme Court). Without the legal principle of stare decisis, for each case a chamber
may come to a different, even contradictory, conclusion, even compared to chambers within the
same session. If they come to relatively consistent decisions, those in civil law legal systems call
this jurisprudence constante.
Everyone has the right of legal assistance. The accused have the right to a defense lawyer from
the time they are detained, put in custody, charged, or declared a suspect. According to the 2001
Code of Criminal Procedure, defense lawyers can participate in investigations with the consent
of the prosecutor, meet privately with a client, collect evidence independently of the prosecutor,
identify defense witnesses, present expert witnesses, be present for all court procedures, access to
the prosecutions evidence after the investigation, and to file appeals regarding court procedures.
For serious and specific crimes, the accused have the option of a jury trial consisting of 12
jurors.  The crimes that may be tried by a jury are murder, kidnapping, rape with aggravating
circumstances, child trafficking, gangsterism, large-scale bribery, treason, terrorism, public calls
for violent change in the constitutional system or for the seizure of power, and select other
crimes against the state. The Constitution of Russia stipulates that, until the abolition of the death
penalty, all defendants in a case that may result in a death sentence are entitled to a jury trial.
Jurors are selected by the prosecution and defense from a list of 30-40 eligible candidates. They
are similar to common law juries, and unlike lay judges, in that they sit separately from the
judges and decide questions of fact alone while the judge determines questions of law. They
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must return unanimous verdicts during the first 3 hours of deliberation, but may return majority
verdicts after that, with 6 jurors being enough to acquit. They may also request that the judge
show leniency in sentencing.
The arbitrazh courts have been singled out as particularly effective in dealing with business
issues.  Also, the number of people seeking assistance of the judicial system has increased from
1 million under Yeltsin to 6 million under Putin.
However, Transparency International found that 78% of respondents reported they did not expect
to find justice in the courts. Both public perception and comments from senior judges point to
bribery as prevalent at the trial court level.
There have been serious violations of the accepted separation of powers doctrine. Constitutional
Court Judge and Council of Judges member Vladimir Yaroslavtsev, in a 2009 interview with the
Spanish newspaper El País, claimed that the presidential executive office and security services
had undermined judicial independence in Russia. Constitutional Court Judge Anatoly Kononov,
who had frequently dissented from decisions taken by the majority of the court, in his interview
to Sobesednik supported Yaroslavtsev, claiming that there was no independent judiciary in
There have been accusations of systematic attempts to undermine jury trials, including juror
intimidation and bribery, and systematic trial delays. The number of jury trials remains small, at
about 600 per year, out of about 1 million trials. Lawmakers are continuously chipping away at
what types of criminal offenses merit a jury trial. Juries have granted acquittals in 15-20% of
cases, compared with less than 1% in cases decided by judges. Juries may be dismissed and
skeptical juries have been dismissed on the verge of verdicts, and acquittals are frequently
overturned by higher courts.
Compared to other industrialized nations, Russia has historically had a small number of lawyers
in relation to its population. In 2002 there were 47,000 defense lawyers in all of Russia, while the
courts sentenced about 1 million people for criminal offenses and considered 3 million
administrative offenses and 2.5 million civil cases, and the Russian Census of 2002 put the
resident population at more than 145 million people. For a comparison to the United States, the
number of active lawyers practicing before the judiciary of California as of December 2012 was
more than 179,000, while the 2010 United States Census put the California population at more
than 37 million people.
The court chairperson has sole discretion for allocation of court cases, and there is no systematic
procedure for allocation based on objective criteria. There have been reports where the
chairperson always assigns sensitive cases to particular judges or transfers cases to another judge
during an ongoing trial.
There have been allegations of corruption concerning the oral exam required for admission to the
Advokatura, known as being "called to the bar" in commonwealth countries.
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Judicial Review is the doctrine under which legislative and executive actions are subject to
review by the judiciary. A court with judicial review power may invalidate laws and decisions
that are incompatible with a higher authority, such as the terms of a written
Judicial review is one of the checks and balances in the separation of
power of the judiciary to supervise the legislative
and executive branches. The
doctrine varies between
jurisdictions, so the procedure
and scope of judicial review
may differ between and within
Judicial review can be understood in the context of two distinct—but parallel—legal systems,
civil law and common law, and also by two distinct theories of democracy regarding the manner
in which government should be organized with respect to the principles and doctrines of
legislative supremacy and the separation of powers.
First, two distinct legal systems, civil law and common law, have different views about judicial
review. Common-law judges are seen as sources of law, capable of creating new legal principles,
and also capable of rejecting legal principles that are no longer valid. In the civil-law tradition,
judges are seen as those who apply the law, with no power to create (or destroy) legal principles.
Secondly, the idea of separation of powers is another theory about how a democratic society's
government should be organized. In contrast to legislative supremacy, the idea of separation of
powers was first introduced by Montesquieu; it was later institutionalized in the United States by
the Supreme Court ruling in Marbury v. Madison under the court of John Marshall. Separation of
powers is based on the idea that no branch of government should be able to exert power over any
other branch without due process of law; each branch of government should have a check on the
powers of the other branches of government, thus creating a regulative balance among all
branches of government. The key to this idea is checks and balances. In the United States,
judicial review is considered a key check on the powers of the other two branches of government
by the judiciary, although the power itself is not granted by the Constitution.
Differences in organizing "democratic" societies led to different views regarding judicial review,
with societies based on common law and those stressing a separation of powers being the most
likely to utilize judicial review. Nevertheless, many countries whose legal systems are based on
the idea of legislative supremacy have learned the possible dangers and limitations of entrusting
power exclusively to the legislative branch of government. Many countries with civil-law
systems have adopted a form of judicial review to stem the tyranny of the majority.
Another reason why judicial review should be understood in the context of both the development
of two distinct legal systems (civil law and common law) and two theories of democracy
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(legislative supremacy and separation of powers) is that some countries with common-law
systems do not have judicial review of primary legislation. Though a common-law system is
present in the United Kingdom, the country still has a strong attachment to the idea of legislative
supremacy; consequently, judges in the United Kingdom do not have the power to strike down
primary legislation. However, since the United Kingdom became a member of the European
Union there has been tension between its tendency toward legislative supremacy and the EU's
legal system, which specifically gives the Court of Justice of the European Union the power of
Judicial Review of Administrative Acts
Most modern legal systems allow the courts to review administrative acts (individual decisions
of a public body, such as a decision to grant a subsidy or to withdraw a residence permit). In
most systems, this also includes review of secondary legislation (legally-enforceable rules of
general applicability adopted by administrative bodies). Some countries (notably France and
Germany) have implemented a system of administrative courts which are charged with resolving
disputes between members of the public and the administration. In other countries (including the
United States, Scotland and the Netherlands), judicial review is carried out by regular civil courts
although it may be delegated to specialized panels within these courts (such as the
Administrative Court within the High Court of England and Wales). The United States employs
a mixed system in which some administrative decisions are reviewed by the United States district
courts (which are the general trial courts), some are reviewed directly by the United States courts
of appeals and others are reviewed by specialized tribunals such as the United States Court of
Appeals for Veterans Claims (which, despite its name, is not technically part of the federal
judicial branch). It is quite common that before a request for judicial review of an administrative
act is filed with a court, certain preliminary conditions (such as a complaint to the authority
itself) must be fulfilled. In most countries, the courts apply special procedures in administrative
Judicial Review of Primary Legislation
There are three broad approaches to judicial review of the constitutionality of primary
legislation—that is, laws passed directly by an elected legislature. Some countries do not permit
a review of the validity of primary legislation. In the United Kingdom, statutes cannot be set
aside under the doctrine of parliamentary sovereignty. Another example is the Netherlands,
where the constitution expressly forbids the courts to rule on the question of constitutionality of
Review by General Courts
In the United States, federal and state courts (at all levels, both appellate and trial) are able to
review and declare the "constitutionality", or agreement with the Constitution (or lack thereof) of
legislation that is relevant to any case properly within their jurisdiction. In American legal
language, "judicial review" refers primarily to the adjudication of constitutionality of statutes,
especially by the Supreme Court of the United States. This is commonly held to have been
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established in the case of Marbury v. Madison, which was argued before the Supreme Court in
1803. A similar system was also adopted in Australia.
Review by A Specialized Court
In 1920, Czechoslovakia adopted a system of judicial review by a specialized court, the
Constitutional Court as written by Hans Kelsen, a leading jurist of the time. This system was
later adopted by Austria and became known as the Austrian System, also under the primary
authorship of Hans Kelsen, being emulated by a number of other countries. In these systems,
other courts are not competent to question the constitutionality of primary legislation; they often
may, however, initiate the process of review by the Constitutional Court.
Russia adopts a mixed model since (as in the US) courts at all levels, both federal and state, are
empowered to review primary legislation and declare its constitutionality; as in the Czech
Republic, there is a constitutional court in charge of reviewing the constitutionality of primary
legislation. The difference is that in the first case, the decision about the laws adequacy to the
Russian Constitution only binds the parties to the lawsuit; in the second, the Court's decision
must be followed by judges and government officials at all levels.
Law Reform or Legal Reform is the process of examining existing laws, and advocating and
implementing changes in a legal system, usually with the aim of enhancing justice or efficiency.
Intimately related are law reform bodies or law commissions, which are organizations set up to
facilitate law reform. Law reform bodies carry out research and recommend ways to simplify and
modernize the law. Many law reform bodies are statutory corporations set up by governments,
although they are usually independent from government control, providing intellectual
independence to accurately reflect and report on how the law should progress.
Law reform activities can include preparation and presentation of cases in court in order to
change the common law; lobbying of government officials in order to change legislation; and
research or writing that helps to establish an empirical basis for other law reform activities.
The four main methods in reforming law are repeal (get rid of a law), creation of new law,
consolidation (change existing law) and codification.
The expression "law reform" is used in a number of senses and some of these are close to being
wholly incompatible with each other.
In the Law Reform Commission Act 1975, the expression "reform" includes, in relation to the
law or a branch of the law, its development, its codification (including in particular its
simplification and modernisation) and the revision and consolidation of statute law, and kindred
words must be construed accordingly.
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Correlation with Judicial Reform
Judicial reform is the complete or partial political reform of a country's judiciary. Judicial reform
is often done as a part of wider reform of the country's political system or a legal reform. The
President of the Constitutional Court of the Russian Federation, Valery Zorkin, gives in his
article, "Twelve Theseses on Legal Reform in Russia", first published in Russian magazine
«Legislation and Economics», N. 2, 2004 an explained correlation between legal and judicial
reform: "Complete legal reform should normally include not only judicial reform, but also
reform of various aspects of the structural system and content of legislation, legal education,
legal awareness by the population, and also the corporate consciousness of the whole legal
community. Judicial reform usually aims to improve such things as law courts, procuracies,
advocacy (bar), inquest, executory processes, and record keeping.".
Legal reform can be the ―driver‖ for all other reforms, including reform of the economy. A true
market economy cannot be created without ensuring both full guarantees of private property and
transparent predictability for entrepreneurial activity, on the one hand; and sufficiently
reasonable legal control over economic processes, on the other hand. Legal reform should be an
integral part of any on-going reform process. Legal reform is a tool for implementing necessary
reforms, to balance competing interests, create a dynamic and sustainable economy, and build a
sustainable civil society. During last decades the judiciary became active in economic issues
related with economic rights established by constitution because "economics may provide insight
into questions that bear on the proper legal interpretation".  Since many a country with a
transitional political and economic system continues treating its constitution as an abstract legal
document disengaged from the economic policy of the state, practice of judicial review of
economic acts of executive and legislative branches became to grow.
The budget of the judiciary in many transitional and developing countries is completely
controlled by the executive. The latter undermines the separation of powers, as it creates a
critical financial dependence of the judiciary. The proper national wealth distribution including
the government spending on the judiciary is subject of the constitutional economics. It is
important to distinguish between the two methods of corruption of the judiciary: the state
(through budget planning and various privileges), and the private.
The US Model
Judicial review within the United States is the
ability of a court to examine and decide if a
statute, treaty or administrative regulation
contradicts or violates the provisions of existing
law, a State Constitution, or ultimately the United
States Constitution. While the U.S. Constitution
does not explicitly define a "power" of judicial
review, the authority for judicial review in the
United States has been inferred from the
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structure, provisions, and history of the Constitution.
Two landmark decisions by the U.S. Supreme Court served to confirm the inferred constitutional
authority for judicial review in the United States: In 1796, Hylton v. United States was the first
case decided by the Supreme Court involving a direct challenge to the constitutionality of an act
of Congress, the Carriage Act of 1794 which imposed a "carriage tax". The Court engaged in the
process of judicial review by examining the plaintiff's claim that the carriage tax was
unconstitutional. After review, the Supreme Court decided the Carriage Act was not
unconstitutional. In 1803, Marbury v. Madison was the first Supreme Court case where the Court
asserted its authority for judicial review to strike down a law as unconstitutional. At the end of
his opinion in this decision, Chief Justice John Marshall maintained that the Supreme Court's
responsibility to overturn unconstitutional legislation was a necessary consequence of their
sworn oath of office to uphold the Constitution as instructed in Article Six of the Constitution.
As of 2014, the United States Supreme Court has held 176 Acts of the U.S. Congress
The Constitution does not expressly provide that the federal judiciary has the power of judicial
review. Rather, the power to declare laws unconstitutional has been deemed an implied power,
derived from Article III and Article VI.
The provisions relating to the federal judicial power in Article III state:
judicial power of the United States, shall be vested in one
Supreme Court, and in such inferior courts as the Congress may from
time to time ordain and establish. . . . The judicial power shall extend
to all cases, in law and equity, arising under this Constitution, the
laws of the United States, and treaties made, or which shall be made,
under their authority. . . . In all cases affecting ambassadors, other
public ministers and consuls, and those in which a state shall be party,
the Supreme Court shall have original jurisdiction. In all the other
cases before mentioned, the Supreme Court shall have appellate
jurisdiction, both as to law and fact, with such exceptions, and under
such regulations as the Congress shall make.
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The Supremacy Clause of Article VI states:
Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding. . . . [A]ll executive and judicial Officers,
both of the United States and of the several States, shall be bound by
Oath or Affirmation, to support this Constitution.
The power of judicial review has been implied from these provisions based on the following
reasoning. It is the inherent duty of the courts to determine the applicable law in any given case.
The Supremacy Clause says "[t]his Constitution" is the "supreme law of the land." The
Constitution therefore is the fundamental law of the United States. Federal statutes are the law of
the land only when they are "made in pursuance" of the Constitution. State constitutions and
statutes are valid only if they are consistent with the Constitution. Any law contrary to the
Constitution is void. The federal judicial power extends to all cases "arising under this
Constitution." As part of their inherent duty to determine the law, the federal courts have the
duty to interpret and apply the Constitution and to decide whether a federal or state statute
conflicts with the Constitution. All judges are bound to follow the Constitution. If there is a
conflict, the federal courts have a duty to follow the Constitution and to treat the conflicting
statute as unenforceable. The Supreme Court has final appellate jurisdiction in all cases arising
under the Constitution, so the Supreme Court has the ultimate authority to decide whether
statutes are consistent with the Constitution.
The Constitutional Convention
During the debates at the Constitutional Convention, the Founding Fathers made a number of
references to the concept of judicial review. The greatest number of these references occurred
during the discussion of the proposal known as the Virginia Plan. The Virginia Plan included a
"council of revision" that would have examined proposed new federal laws and would have
accepted or rejected them, similar to today's presidential veto. The "council of revision" would
have included the President along with some federal judges. Several delegates objected to the
inclusion of federal judges on the council of revision. They argued the federal judiciary, through
its power to declare laws unconstitutional, already had the opportunity to protect against
legislative encroachment, and the judiciary did not need a second way to negate laws by
participating in the council of revision. For example, Elbridge Gerry said federal judges "would
have a sufficient check against encroachments on their own department by their exposition of the
laws, which involved a power of deciding on their constitutionality. In some states the judges
had actually set aside laws, as being against the constitution. This was done too with general
approbation." Luther Martin said: "[A]s to the constitutionality of laws, that point will come
before the judges in their official character. In this character they have a negative on the laws.
Join them with the executive in the revision, and they will have a double negative." These and
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other similar comments by the delegates indicated that the federal courts would have the power
of judicial review.
Other delegates argued that if federal judges were involved in the law-making process through
participation on the council of revision, their objectivity as judges in later deciding on the
constitutionality of those laws could be impaired. These comments indicated a belief that the
federal courts would have the power to declare laws unconstitutional.
At several other points in the debates at the Constitutional Convention, delegates made
comments indicating their belief that under the Constitution, federal judges would have the
power of judicial review. For example, George Mason said that federal judges "could declare an
unconstitutional law void." James Madison said: "A law violating a constitution established by
the people themselves, would be considered by the Judges as null & void."
In all, fifteen delegates from nine states made comments regarding the power of the federal
courts to review the constitutionality of laws. All but two of them supported the idea that the
federal courts would have the power of judicial review. Some delegates to the Constitutional
Convention did not speak about judicial review during the Convention, but did speak about it
before or after the Convention. Including these additional comments by Convention delegates,
scholars have found that twenty-five or twenty-six of the Convention delegates made comments
indicating support for judicial review, while three to six delegates opposed judicial review. One
review of the debates and voting records of the convention counted as many as forty delegates
who supported judicial review, with four or five opposed.
In their comments relating to judicial review, the framers indicated that the power of judges to
declare laws unconstitutional was part of the system of separation of powers. The framers stated
that the courts' power to declare laws unconstitutional would provide a check on the legislature,
protecting against excessive exercise of legislative power.
The State Ratification Debates
Judicial review was discussed in at least seven of the thirteen state ratifying conventions, and
was mentioned by almost two dozen delegates. In each of these conventions, delegates asserted
that the proposed Constitution would allow the courts to exercise judicial review. There is no
record of any delegate to a state ratifying convention who indicated that the federal courts would
not have the power of judicial review.
For example, James Wilson asserted in the Pennsylvania ratifying convention that federal judges
would exercise judicial review: "If a law should be made inconsistent with those powers vested
by this instrument in Congress, the judges, as a consequence of their independence, and the
particular powers of government being defined, will declare such law to be null and void. For the
power of the Constitution predominates. Anything, therefore, that shall be enacted by Congress
contrary thereto will not have the force of law."
In the Connecticut ratifying convention, Oliver Ellsworth likewise described judicial review as a
feature of the Constitution: "This Constitution defines the extent of the powers of the general
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government. If the general legislature should at any time overleap their limits, the judicial
department is a constitutional check. If the United States go beyond their powers, if they make a
law which the Constitution does not authorize, it is void; and the judicial power, the national
judges, who, to secure their impartiality, are to be made independent, will declare it to be void."
During the ratification process, supporters and opponents of ratification published pamphlets,
essays, and speeches debating various aspects of the Constitution. Publications by over a dozen
authors in at least twelve of the thirteen states asserted that under the Constitution, the federal
courts would have the power of judicial review. There is no record of any opponent to the
Constitution who claimed that the Constitution did not involve a power of judicial review.
After reviewing the statements made by the founders, one scholar concluded: "The evidence
from the Constitutional Convention and from the state ratification conventions is overwhelming
that the original public meaning of the term 'judicial power' [in Article III] included the power to
nullify unconstitutional laws."
The Federalist Papers
The Federalist Papers, which were published in 1787–1788 to promote ratification of the
Constitution, made several references to the power of judicial review. The most extensive
discussion of judicial review was in Federalist No. 78, written by Alexander Hamilton, which
clearly explained that the federal courts would have the power of judicial review. Hamilton
stated that under the Constitution, the federal judiciary would have the power to declare laws
unconstitutional. Hamilton asserted that this was appropriate because it would protect the people
against abuse of power by Congress:
courts were designed to be an intermediate body between the
people and the legislature, in order, among other things, to keep the
latter within the limits assigned to their authority. The interpretation
of the laws is the proper and peculiar province of the courts. A
constitution is, in fact, and must be regarded by the judges, as a
fundamental law. It therefore belongs to them to ascertain its
meaning, as well as the meaning of any particular act proceeding
from the legislative body. If there should happen to be an
irreconcilable variance between the two, that which has the superior
obligation and validity ought, of course, to be preferred; or, in other
words, the Constitution ought to be preferred to the statute, the
intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the
judicial to the legislative power. It only supposes that the power of
the people is superior to both; and that where the will of the
legislature, declared in its statutes, stands in opposition to that of the
people, declared in the Constitution, the judges ought to be governed
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y the latter rather than the former. They ought to regulate their
decisions by the fundamental laws, rather than by those which are not
[A]ccordingly, whenever a particular statute contravenes the
Constitution, it will be the duty of the Judicial tribunals to adhere to
the latter and disregard the former....
[T]he courts of justice are to be considered as the bulwarks of a
limited Constitution against legislative encroachments.
In Federalist No. 80, Hamilton rejected the idea that the power to decide the constitutionality of
an act of Congress should lie with each of the states: "The mere necessity of uniformity in the
interpretation of the national laws, decides the question. Thirteen independent courts of final
jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from
which nothing but contradiction and confusion can proceed." Consistent with the need for
uniformity in interpretation of the Constitution, Hamilton explained in Federalist No. 82 that the
Supreme Court has authority to hear appeals from the state courts in cases relating to the
The arguments against ratification by the Anti-Federalists agreed that the federal courts would
have the power of judicial review, though the Anti-Federalists viewed this negatively. Robert
Yates, writing under the pseudonym "Brutus", stated:
judges under this constitution will control the legislature, for the supreme
court are authorised in the last resort, to determine what is the extent of the powers
of the Congress. They are to give the constitution an explanation, and there is no
power above them to set aside their judgment. . . . The supreme court then have a
right, independent of the legislature, to give a construction to the constitution and
every part of it, and there is no power provided in this system to correct their
construction or do it away. If, therefore, the legislature pass any laws, inconsistent
with the sense the judges put upon the constitution, they will declare it void.
The Judiciary Act of 1789
The first Congress passed the Judiciary Act of 1789, establishing the lower federal courts and
specifying the details of federal court jurisdiction. Section 25 of the Judiciary Act provided for
the Supreme Court to hear appeals from state courts when the state court decided that a federal
statute was invalid, or when the state court upheld a state statute against a claim that the state
statute was repugnant to the Constitution. This provision gave the Supreme Court the power to
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eview state court decisions involving the constitutionality of both federal statutes and state
statutes. The Judiciary Act thereby incorporated the concept of judicial review.
Court Decisions from 1788 to 1803
Between the ratification of the Constitution in 1788 and the decision in
v. Madison in 1803, judicial review was employed in both
federal and state courts. A detailed analysis has identified
one state or federal cases during this time in which
statutes were struck down as unconstitutional, and seven
additional cases in which statutes were upheld but at
least one judge concluded the statute was
unconstitutional. The author of this analysis,
Professor William Treanor, concluded: "The sheer
number of these decisions not only belies the
notion that the institution of judicial review was
created by Chief Justice Marshall in Marbury, it
also reflects widespread acceptance and
application of the doctrine."
Several other cases involving judicial review issues reached the Supreme Court before the issue
was definitively decided in Marbury in 1803.
In Hayburn's Case, 2 U.S. (2 Dall.) 408 (1792), federal circuit courts held an act of Congress
unconstitutional for the first time. Three federal circuit courts found that Congress had violated
the Constitution by passing an act requiring circuit court judges to decide pension applications,
subject to the review of the Secretary of War. These circuit courts found that this was not a
proper judicial function under Article III. These three decisions were appealed to the Supreme
Court, but the appeals became moot when Congress repealed the statute while the appeals were
In an unreported Supreme Court decision in 1794, United States v. Yale Todd, the Supreme Court
reversed a pension that was awarded under the same pension act that had been at issue in
Hayburn's Case. The Court apparently decided that the act designating judges to decide pensions
was not constitutional because this was not a proper judicial function. This apparently was the
first Supreme Court case to find an act of Congress unconstitutional. However, there was not an
official report of the case and it was not used as a precedent.
Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), was the first case decided by the Supreme
Court that involved a challenge to the constitutionality of an act of Congress. It was argued that a
federal tax on carriages violated the constitutional provision regarding "direct" taxes. The
Supreme Court upheld the tax, finding it was constitutional. Although the Supreme Court did not
strike down the act in question, the Court engaged in the process of judicial review by
considering the constitutionality of the tax. The case was widely publicized at the time, and
observers understood that the Court was testing the constitutionality of an act of Congress.
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Because it found the statute valid, the Court did not have to assert that it had the power to declare
a statute unconstitutional.
In Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), the Supreme Court for the first time struck down
a state statute. The Court reviewed a Virginia statute regarding pre-Revolutionary war debts and
found that it was inconsistent with the peace treaty between the United States and Great Britain.
Relying on the Supremacy Clause, the Court found the Virginia statute invalid.
In Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798), the Supreme Court found that it did not
have jurisdiction to hear the case because of the jurisdiction limitations of the Eleventh
Amendment. This holding could be viewed as an implicit finding that the Judiciary Act of 1789,
which would have allowed the Court jurisdiction, was unconstitutional in part. However, the
Court did not provide any reasoning for its conclusion and did not say that it was finding the
In Cooper v. Telfair, 4 U.S. (4 Dall.) 14 (1800), Justice Chase stated: "It is indeed a general
opinion—it is expressly admitted by all this bar and some of the judges have, individually in the
circuits decided, that the Supreme Court can declare an act of Congress to be unconstitutional,
and therefore invalid, but there is no adjudication of the Supreme Court itself upon the point."
Responses to the Kentucky and Virginia Resolutions
In 1798, the Kentucky and Virginia legislatures passed a series of resolutions asserting that the
states have the power to determine whether acts of Congress are constitutional. In response, ten
states passed their own resolutions disapproving the Kentucky and Virginia resolutions. Six of
these states took the position that the power to declare acts of Congress unconstitutional lies in
the federal courts, not in the state legislatures. For example, Vermont's resolution stated: "It
belongs not to state legislatures to decide on the constitutionality of laws made by the general
government; this power being exclusively vested in the judiciary courts of the Union."
Thus, five years before Marbury v. Madison, a number of state legislatures stated their
understanding that under the Constitution, the federal courts possess the power of judicial
Marbury v. Madison
The Supreme Court's landmark decision regarding judicial review is Marbury v. Madison, 5 U.S.
(1 Cranch) 137 (1803). Marbury was the first Supreme Court decision to strike down an act of
Congress as unconstitutional. Chief Justice John Marshall wrote the opinion for a unanimous
The case arose when William Marbury filed a lawsuit seeking an order (a "writ of mandamus")
requiring the Secretary of State, James Madison, to deliver to Marbury a commission appointing
him as a justice of the peace. Marbury filed his case directly in the Supreme Court, invoking the
Court's "original jurisdiction", rather than filing in a lower court.
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The constitutional issue involved the question of whether the Supreme Court had jurisdiction to
hear the case. The Judiciary Act of 1789 gave the Supreme Court original jurisdiction in cases
involving writs of mandamus. So, under the Judiciary Act, the Supreme Court would have had
jurisdiction to hear Marbury's case. However, the Constitution describes the cases in which the
Supreme Court has original jurisdiction, and does not include mandamus cases. The Judiciary
Act therefore attempted to give the Supreme Court jurisdiction that was not "warranted by the
Marshall's opinion stated that in the Constitution, the people established a government of limited
powers: "The powers of the Legislature are defined and limited; and that those limits may not be
mistaken or forgotten, the Constitution is written." The limits established in the Constitution
would be meaningless "if these limits may at any time be passed by those intended to be
restrained." Marshall observed that the Constitution is "the fundamental and paramount law of
the nation", and that it cannot be altered by an ordinary act of the legislature. Therefore, "an act
of the Legislature repugnant to the Constitution is void."
Marshall then discussed the role of the courts, which is at the heart of the doctrine of judicial
review. It would be an "absurdity", said Marshall, to require the courts to apply a law that is
void. Rather, it is the inherent duty of the courts to interpret and apply the Constitution, and to
determine whether there is a conflict between a statute and the Constitution:
is emphatically the province and duty of the Judicial Department to
say what the law is. Those who apply the rule to particular cases
must, of necessity, expound and interpret that rule. If two laws
conflict with each other, the Courts must decide on the operation of
So, if a law be in opposition to the Constitution, if both the law and
the Constitution apply to a particular case, so that the Court must
either decide that case conformably to the law, disregarding the
Constitution, or conformably to the Constitution, disregarding the
law, the Court must determine which of these conflicting rules
governs the case. This is of the very essence of judicial duty.
If, then, the Courts are to regard the Constitution, and the
Constitution is superior to any ordinary act of the Legislature, the
Constitution, and not such ordinary act, must govern the case to
which they both apply....
Marshall stated that the courts are authorized by the provisions of the Constitution itself to "look
into" the Constitution, that is, to interpret and apply it, and that they have the duty to refuse to
enforce any laws that are contrary to the Constitution. Specifically, Article III provides that the
federal judicial power "is extended to all cases arising under the Constitution." Article VI
requires judges to take an oath "to support this Constitution." Article VI also states that only laws
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"made in pursuance of the Constitution" are the law of the land. Marshall concluded: "Thus, the
particular phraseology of the Constitution of the United States confirms and strengthens the
principle, supposed to be essential to all written Constitutions, that a law repugnant to the
Constitution is void, and that courts, as well as other departments, are bound by that instrument."
Marbury long has been regarded as the seminal case with respect to the doctrine of judicial
review. Some scholars have suggested that Marshall's opinion in Marbury essentially created
judicial review. In his book The Least Dangerous Branch, Professor Alexander Bickel wrote:
institution of the judiciary needed to be summoned up out of
the constitutional vapors, shaped, and maintained. And the Great
Chief Justice, John Marshall—not single-handed, but first and
foremost—was there to do it and did. If any social process can be said
to have been 'done' at a given time, and by a given act, it is Marshall's
achievement. The time was 1803; the act was the decision in the case
of Marbury v. Madison.
Other scholars view this as an overstatement, and argue that Marbury was decided in a context in
which judicial review already was a familiar concept. These scholars point to the facts showing
that judicial review was acknowledged by the Constitution's framers, was explained in the
Federalist Papers and in the ratification debates, and was used by both state and federal courts for
more than twenty years before Marbury, including the Supreme Court in Hylton v. United States.
One scholar concluded: "[B]efore Marbury, judicial review had gained wide support."
Judicial Review Post Marbury
After the Court exercised its power of judicial review in Marbury, it avoided striking down a
federal statute during the next fifty years. The court would not do so again until Dred Scott v.
Sandford, 60 U.S. (19 How.) 393 (1857).
However, the Supreme Court did exercise judicial review in other contexts. In particular, the
Court struck down a number of state statutes that were contrary to the Constitution. The first case
in which the Supreme Court struck down a state statute as unconstitutional was Fletcher v. Peck,
10 U.S. (6 Cranch) 87 (1810).
In a few cases, state courts took the position that their judgments were final and were not subject
to review by the Supreme Court. They argued that the Constitution did not give the Supreme
Court the authority to review state court decisions. They asserted that the Judiciary Act of 1789,
which provided that the Supreme Court could hear certain appeals from state courts, was
unconstitutional. In effect, these state courts were asserting that the principle of judicial review
did not extend to allow federal review of state court decisions. This would have left the states
free to adopt their own interpretations of the Constitution.
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The Supreme Court rejected this argument. In Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304
(1816), the Court held that under Article III, the federal courts have jurisdiction to hear all cases
arising under the Constitution and laws of the United States, and that the Supreme Court has
appellate jurisdiction in all such cases, whether those cases are filed in state or federal courts.
The Court issued another decision to the same effect in the context of a criminal case, Cohens v.
Virginia, 19 U.S. (6 Wheat.) 264 (1821). It is now well established that the Supreme Court may
review decisions of state courts that involve federal law.
The Supreme Court also has reviewed actions of the federal executive branch to determine
whether those actions were authorized by acts of Congress or were beyond the authority granted
Judicial review is now well established as a cornerstone of constitutional law. As of 2014, the
United States Supreme Court had held unconstitutional some 176 Acts of the U.S. Congress.
Although judicial review has now become an established part of constitutional law in the United
States, there are some who disagree with the doctrine.
At the Constitutional Convention, neither proponents nor opponents of judicial review disputed
that any government based on a written constitution requires some mechanism to prevent laws
that violate that constitution from being made and enforced. Otherwise, the document would be
meaningless, and the legislature, with the power to enact any laws whatsoever, would be the
supreme arm of government (the British doctrine of parliamentary sovereignty). The delegates at
the Convention differed with respect to the question of whether Congress or the judiciary should
make determinations regarding constitutionality of statutes. Hamilton addressed this in Federalist
No. 78, in which he explained the reasons that the federal judiciary has the role of reviewing the
constitutionality of statutes:
it be said that the legislative body are themselves the constitutional
judges of their own powers, and that the construction they put upon
them is conclusive upon the other departments, it may be answered,
that this cannot be the natural presumption, where it is not to be
collected from any particular provisions in the Constitution. It is not
otherwise to be supposed, that the Constitution could intend to enable
the representatives of the people to substitute their will to that of their
constituents. It is far more rational to suppose, that the courts were
designed to be an intermediate body between the people and the
legislature, in order, among other things, to keep the latter within the
limits assigned to their authority.
Since the adoption of the Constitution, some have argued that the power of judicial review gives
the courts the ability to impose their own views of the law, without an adequate check from any
other branch of government. Robert Yates, a delegate to the Constitutional Convention from
New York, argued during the ratification process in the Anti-Federalist Papers that the courts
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would use the power of judicial review loosely to impose their views about the "spirit" of the
their decisions they will not confine themselves to any fixed or
established rules, but will determine, according to what appears to
them, the reason and spirit of the constitution. The opinions of the
supreme court, whatever they may be, will have the force of law;
because there is no power provided in the constitution, that can
correct their errors, or controul their adjudications. From this court
there is no appeal.
In 1820, Thomas Jefferson expressed his opposition to the doctrine of judicial review:
seem ... to consider the judges as the ultimate arbiters of all
constitutional questions; a very dangerous doctrine indeed, and one
which would place us under the despotism of an oligarchy. Our
judges are as honest as other men, and not more so. They have, with
others, the same passions for party, for power, and the privilege of
their corps.... Their power [is] the more dangerous as they are in
office for life, and not responsible, as the other functionaries are, to
the elective control. The Constitution has erected no such single
tribunal, knowing that to whatever hands confided, with the
corruptions of time and party, its members would become despots. It
has more wisely made all the departments co-equal and co-sovereign
In 1861, Abraham Lincoln touched upon the same subject, during his first inaugural address:
candid citizen must confess that if the policy of the
Government upon vital questions affecting the whole people is to be
irrevocably fixed by decisions of the Supreme Court, the instant they
are made in ordinary litigation between parties in personal actions the
people will have ceased to be their own rulers, having to that extent
practically resigned their Government into the hands of that eminent
tribunal. Nor is there in this view any assault upon the court or the
judges. It is a duty from which they may not shrink to decide cases
properly brought before them, and it is no fault of theirs if others seek
to turn their decisions to political purposes.
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Lincoln was alluding here to the case of Dred Scott v. Sandford, in which the Court had struck
down a federal statute for the first time since Marbury v. Madison.
It has been argued that the judiciary is not the only branch of government that may interpret the
meaning of the Constitution. Article VI requires federal and state officeholders to be bound "by
Oath or Affirmation, to support this Constitution." It has been argued that such officials may
follow their own interpretations of the Constitution, at least until those interpretations have been
tested in court.
Some have argued that judicial review is unconstitutional. See W.W. Crosskey, Politics and the
Constitution in the History of the United States (Chicago: 1953), chs. 27-29, with which compare
Hart, Book Review, 67 Harv. L. Rev. 1456 (1954). A brief review of the debate on the subject is
Westin, Introduction: Charles Beard and American Debate over Judicial Review, 1790-1961, in
C. Beard, The Supreme Court and the Constitution (Englewood Cliffs: 1962 reissue of 1938 ed.),
1-34, and bibliography at 133-149. See more at:
This theory is generally based on two arguments. First, the power of judicial review is not
expressly delegated to the courts in the Constitution. The Tenth Amendment reserves to the
states (or to the people) those powers not delegated to the federal government. The second
argument is that the states alone have the power to ratify changes to the "supreme law" (the U.S.
Constitution), and that the states should play some role in interpreting its meaning. Under this
theory, allowing only federal courts to definitively conduct judicial review of federal law allows
the national government to interpret its own restrictions as it sees fit, with no meaningful input
from the ratifying power.
The Contemporary Standard
In the United States, unconstitutionality is the only ground for a federal court to strike down a
federal statute. Justice Washington, speaking for the Marshall Court, put it this way in an 1829
intend to decide no more than that the statute objected to in this
case is not repugnant to the Constitution of the United States, and that
unless it be so, this Court has no authority, under the 25th section of
the judiciary act, to re-examine and to reverse the judgement of the
supreme court of Pennsylvania in the present case.
If a state statute conflicts with a valid federal statute, then courts may strike down the state
statute as an unstatutable violation of the Supremacy Clause. But a federal court may not strike
down a statute absent a violation of federal law or of the federal Constitution.
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Moreover, a suspicion or possibility of unconstitutionality is not enough for American
courts to strike down a statute. Alexander Hamilton explained in Federalist
78 that the standard of review should be "irreconcilable variance" with the
Constitution. Anti-federalists agreed that courts would be unable to strike
down federal statutes absent a conflict
with the Constitution.
For example, Robert Yates, writing under the
pseudonym "Brutus", asserted that
"the courts of the
general government [will] be
to observe the laws made by the
legislature not repugnant to
federal statutes can only be
struck down for
and that the unconstitutionality
must be clear—
were very common
views at the time of
the framing of the
Constitution. For example, George Mason
explained during the constitutional convention
that judges "could declare
an unconstitutional law void.
But with regard to every law, however unjust, oppressive or
pernicious, which did not come plainly under this description, they would be under the necessity
as Judges to give it a free course."
For a number of years, the courts were relatively deferential to Congress. Justice Washington put
it this way, in an 1827 case: "It is but a decent respect to the wisdom, integrity, and patriotism of
the legislative body, by which any law is passed, to presume in favor of its validity, until its
violation of the Constitution is proved beyond a reasonable doubt."
Although judges usually adhered to this principle that a statute could only be deemed
unconstitutional in case of a clear contradiction until the twentieth century, this presumption of
constitutionality weakened somewhat during the twentieth century, as exemplified by the
Supreme Court's famous footnote four in United States v. Carolene Products Co., 304 U.S. 144
(1938), which suggested that statutes may be subjected to closer scrutiny in certain types of
cases. Nevertheless, the federal courts have not departed from the principle that courts may only
strike down statutes for unconstitutionality.
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Of course, the practical implication of this principle is that a court cannot strike down a statute,
even if it recognizes that the statute is obviously poorly drafted, irrational, or arises from
legislators' corrupt motives, unless the flaw in the statute rises to the level of a clear
constitutional violation. In 2008, Justice John Paul Stevens reaffirmed this point in a concurring
opinion: "[A]s I recall my esteemed former colleague, Thurgood Marshall, remarking on
numerous occasions: 'The Constitution does not prohibit legislatures from enacting stupid laws.'"
In the federal system, courts may only decide actual cases or controversies; it is not possible to
request the federal courts to review a law without at least one party having legal standing to
engage in a lawsuit. This principle means that courts sometimes do not exercise their power of
review, even when a law is seemingly unconstitutional, for want of jurisdiction. In some state
courts, such as the Massachusetts Supreme Judicial Court, legislation may be referred in certain
circumstances by the legislature or by the executive for an advisory ruling on its constitutionality
prior to its enactment (or enforcement).
The U.S. Supreme Court seeks to avoid reviewing the Constitutionality of an act where the case
before it could be decided on other grounds. Justice Brandeis framed it thus (citations omitted):
Court developed, for its own governance in the cases within its jurisdiction, a
series of rules under which it has avoided passing upon a large part of all the
constitutional questions pressed upon it for decision. They are:
1. The Court will not pass upon the constitutionality of legislation in a
friendly, non-adversary, proceeding, declining because to decide such
questions is legitimate only in the last resort, and as a necessity in the
determination of real, earnest, and vital controversy between individuals. It
never was the thought that, by means of a friendly suit, a party beaten in the
legislature could transfer to the courts an inquiry as to the constitutionality
of the legislative act.
2. The Court will not anticipate a question of constitutional law in advance of
the necessity of deciding it. It is not the habit of the court to decide
questions of a constitutional nature unless absolutely necessary to a
decision of the case.
3. The Court will not formulate a rule of constitutional law broader than
required by the precise facts it applies to.
4. The Court will not pass upon a constitutional question although properly
presented by the record, if there is also present some other ground upon
which the case may be disposed of… If a case can be decided on either of
two grounds, one involving a constitutional question, the other a question of
statutory construction or general law, the Court will decide only the latter.
5. The Court will not pass upon the validity of a statute upon complaint of one
who fails to show that he is injured by its operation.
6. The Court will not pass upon the constitutionality of a statute at the instance
of one who has availed himself of its benefits.
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7. When the validity of an act of the Congress is drawn in question, and even
if a serious doubt of constitutionality is raised, it is a cardinal principle that
this Court will first ascertain whether a construction of the statute is fairly
possible by which the question may be avoided.
Although the Supreme Court continues to review the constitutionality of statutes, Congress and
the states retain some power to influence what cases come before the Court. For example, the
Constitution at Article III, Section 2, gives Congress power to make exceptions to the Supreme
Court's appellate jurisdiction. The Supreme Court has historically acknowledged that its
appellate jurisdiction is defined by Congress, and thus Congress may have power to make some
legislative or executive actions unreviewable. This is known as jurisdiction stripping.
Another way for Congress to limit judicial review was tried in January 1868, when a bill was
proposed requiring a two-thirds majority of the Court in order to deem any Act of Congress
unconstitutional. The bill was approved by the House, 116 to 39.  That measure died in the
Senate, partly because the bill was unclear about how the bill's own constitutionality would be
Many other bills have been proposed in Congress that would require a supermajority in order for
the justices to exercise judicial review.  During the early years of the United States, a twothirds
majority was necessary for the Supreme Court to exercise judicial review; because the
Court then consisted of six members, a simple majority and a two-thirds majority both required
four votes.  Currently, the constitutions of two states require a supermajority of supreme court
justices in order to exercise judicial review: Nebraska (five out of seven justices) and North
Dakota (four out of five justices).
In The Soviet Union
In modern Russia, aspects and directions of development of judicial reform were formulated in
the «Judicial Reform Concept», enacted by the Russian Parliament on October 24, 1991. This
document still remains legally valid and applicable.
Valery Zorkin stressed that "the «separation of powers» principle, also proclaimed in the
Constitution of the Russian Federation, requires observance of judicial independence. And such
independence requires proper funding of the courts and their activities. It is well known that
Russian courts remain under-funded. However, the cumulative economic costs suffered by both
state and private enterprises as the result of under-performance by various judicial institutions,
especially by the courts of general jurisdiction and the arbitration courts, is at least twice the
order of magnitude as the financial burden carried by the state and society in financing such
judicial institutions. The elimination of under-funding of the courts would definitely improve the
efficiency of their work and be worthwhile.
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Taking into account the specifics of historical developments in Russia, one may assert that
without undertaking a large-scale legal reform it would be extremely difficult to succeed
concurrently with judicial reform. It is necessary now to start unfolding a full-scale legal reform,
which has to be completed by the year 2020. The official public presentation and implementation
of such legal reform should become the prime responsibility of executive and legislative
authorities. The program of legal reform needs to be adopted in the form of a legislative act.
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Rule of Law
The Rule of Law (also known as Nomocracy) is the legal
principle that law should govern a nation, as opposed to
arbitrary decisions by individual government officials. It
primarily refers to the influence and authority of law within
society, particularly as a constraint upon behavior, including
behavior of government officials. The phrase can be traced
back to 16th century England, and it was popularized in the
19th century by British jurist A. V. Dicey. The concept was
familiar to ancient philosophers such as Aristotle, who wrote
"Law should govern".
Rule of law implies that every citizen is subject to the law,
including law makers themselves. In this sense, it stands in
contrast to an autocracy, collective leadership, dictatorship,
or oligarchy where the rulers are held above the law (which
is not necessary by definition but which is typical). Lack of
the rule of law can be found in democracies and dictatorships, and can happen because of neglect
or ignorance of the law, corruption, or lack of corrective mechanisms for administrative abuse,
such as an independent judiciary with a rule-of-law culture, a practical right to petition for
redress of grievances, or elections.
Although credit for popularizing the expression "the rule of law" in modern times is usually
given to A. V. Dicey, development of the legal concept can be traced through history to many
ancient civilizations, including ancient Greece, China, Mesopotamia, India and Rome.
In the West, the ancient Greeks initially regarded the best form of government as rule by the best
men. Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was
above the law. Plato nevertheless hoped that the best men would be good at respecting
established laws, explaining that "Where the law is subject to some other authority and has none
of its own, the collapse of the state, in my view, is not far off; but if law is the master of the
government and the government is its slave, then the situation is full of promise and men enjoy
all the blessings that the gods shower on a state." More than Plato attempted to do, Aristotle
flatly opposed letting the highest officials wield power beyond guarding and serving the laws. In
other words, Aristotle advocated the rule of law:
It is more proper that law should govern than any one of the citizens: upon the same principle, if
it is advantageous to place the supreme power in some particular persons, they should be
appointed to be only guardians, and the servants of the laws.
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According to the Roman statesman Cicero, "We are all servants of the laws in order that we may
be free." During the Roman Republic, controversial magistrates might be put on trial when their
terms of office expired. Under the Roman Empire, the sovereign was personally immune
(legibus solutus), but those with grievances could sue the treasury.
In China, members of the school of legalism during the 3rd century BC argued for using law as a
tool of governance, but they promoted "rule by law" as opposed to "rule of law", meaning that
they placed the aristocrats and emperor above the law. In contrast, the Huang-Lao school of
Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to.
There has recently been an effort to reevaluate the influence of the Bible on Western
constitutional law. In the Old Testament, there was some language in Deuteronomy imposing
restrictions on the Jewish king, regarding such things as how many wives he could have, and
how many horses he could own for his personal use. According to Professor Bernard M.
Levinson, "This legislation was so utopian in its own time that it seems never to have been
implemented...." The Deuteronomic social vision may have influenced opponents of the divine
right of kings, including Bishop John Ponet in sixteenth-century England.
In Islamic jurisprudence rule of law was formulated in the seventh century, so that no official
could claim to be above the law, not even the caliph. However, this was not a reference to
secular law, but to Islamic religious law in the form of Sharia law.
In 1215, Archbishop Stephen Langton gathered the Barons in England and forced King John and
future sovereigns and magistrates back under the rule of law, preserving ancient liberties by the
Magna Carta in return for exacting taxes. This foundation for constitution was carried into the
Constitution of the United States.
Early Modern Period
The first known use of this English phrase occurred around 1500 A.D. Another early example of
the phrase "rule of law" is found in a petition to James I of England in 1610, from the House of
Amongst many other points of happiness and freedom which your majesty's subjects of this
kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is
none which they have accounted more dear and precious than this, to be guided and governed by
the certain rule of the law which giveth both to the head and members that which of right
belongeth to them, and not by any uncertain or arbitrary form of government....
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In 1607, English Chief Justice
Sir Edward Coke said in the
Case of Prohibitions (according
to his own report) "that the law
was the golden met-wand and
measure to try the causes of the
subjects; and which protected
His Majesty in safety and peace:
with which the King was greatly
offended, and said, that then he
should be under the law, which
was treason to affirm, as he said;
to which I said, that Bracton
saith, quod Rex non debed esse
sub homine, sed sub Deo et lege
(That the King ought not to be
under any man but under God
and the law.)."
Among the first modern authors
to give the principle theoretical
foundations was Samuel
Rutherford in Lex, Rex (1644). The title, Latin for "the law is king", subverts the traditional
formulation rex lex ("the king is law"). John Locke also discussed this issue in his Second
Treatise of Government (1690). The principle was also discussed by Montesquieu in The Spirit
of the Laws (1748). The phrase "rule of law" appears in Samuel Johnson's Dictionary (1755).
In 1776, the notion that no one is above the law was popular during the founding of the United
States. For example, Thomas Paine wrote in his pamphlet Common Sense that "in America, the
law is king. For as in absolute governments the King is law, so in free countries the law ought to
be king; and there ought to be no other." In 1780, John Adams enshrined this principle in the
Massachusetts Constitution by seeking to establish "a government of laws and not of men."
The Oxford English Dictionary has defined "rule of law" this way:
“The authority and influence of law in society, esp. when viewed as a constraint on individual and
institutional behaviour; (hence) the principle whereby all members of a society (including those in
government) are considered equally subject to publicly disclosed legal codes and processes.”
Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that
the ruler is above the law, for example by divine right.
Despite wide use by politicians, judges and academics, the rule of law has been described as "an
exceedingly elusive notion" According to political theorist Judith N. Shklar, "the phrase 'the Rule
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of Law' has become meaningless thanks to ideological abuse and general over-use", but
nevertheless this phrase has in the past had specific and important meanings.
Among modern legal theorists, one finds that at least two principal conceptions of the rule of law
can be identified: a formalist or "thin" definition, and a substantive or "thick" definition; one
occasionally encounters a third "functional" conception. Formalist definitions of the rule of law
do not make a judgment about the "justness" of law itself, but define specific procedural
attributes that a legal framework must have in order to be in compliance with the rule of law.
Substantive conceptions of the rule of law go beyond this and include certain substantive rights
that are said to be based on, or derived from, the rule of law.
Most legal theorists believe that the rule of law has purely formal characteristics, meaning that
the law must be publicly declared, with prospective application, and possess the characteristics
of generality, equality, and certainty, but there are no requirements with regard to the content of
the law. Others, including a few legal theorists, believe that the rule of law necessarily entails
protection of individual rights. Within legal theory, these two approaches to the rule of law are
seen as the two basic alternatives, respectively labelled the formal and substantive approaches.
Still, there are other views as well. Some believe that democracy is part of the rule of law.
The "formal" interpretation is more widespread than the "substantive" interpretation. Formalists
hold that the law must be prospective, well-known, and have characteristics of generality,
equality, and certainty. Other than that, the formal view contains no requirements as to the
content of the law. This formal approach allows laws that protect democracy and individual
rights, but recognizes the existence of "rule of law" in countries that do not necessarily have such
laws protecting democracy or individual rights.
The substantive interpretation holds that the rule of law intrinsically protects some or all
The functional interpretation of the term "rule of law", consistent with the traditional English
meaning, contrasts the "rule of law" with the "rule of man." According to the functional view, a
society in which government officers have a great deal of discretion has a low degree of "rule of
law", whereas a society in which government officers have little discretion has a high degree of
"rule of law". Upholding the rule of law can sometimes require the punishment of those who
commit offenses that are justifiable under natural law but not statutory law. The rule of law is
thus somewhat at odds with flexibility, even when flexibility may be preferable.
The ancient concept of rule of law can be distinguished from rule by law, according to political
science professor Li Shuguang: "The difference....is that, under the rule of law, the law is
preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a
mere tool for a government, that suppresses in a legalistic fashion."
The rule of law has been considered as one of the key dimensions that determine the quality and
good governance of a country. Research, like the Worldwide Governance Indicators, defines the
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ule of law as: "the extent to which agents have confidence and abide by the rules of society, and
in particular the quality of contract enforcement, the police and the courts, as well as the
likelihood of crime or violence." Based on this definition the Worldwide Governance Indicators
project has developed aggregate measurements for the rule of law in more than 200 countries, as
seen in the map below. A government based on the rule of law can be called a "nomocracy",
from the Greek nomos (law) and kratos (power or rule).
Rule of law in the United Kingdom is a core principle of the way the country is governed. In the
19th century, A. V. Dicey, a constitutional scholar and lawyer, wrote of the twin pillars of the
British constitution in his classic work Introduction to the Study of the Law of the Constitution
(1885). These pillars are the principle of Parliamentary sovereignty and the rule of law.
In Finland, the constitution explicitly requires rule of law by stipulating that "the exercise of
public powers shall be based on an Act. In all public activity, the law shall be strictly observed."
All government officers of the United States,
including the President, the Justices of the
Supreme Court, state judges and legislators,
and all members of Congress, pledge first and
foremost to uphold the Constitution. These
oaths affirm that the rule of law is superior to
the rule of any human leader. At the same time,
the federal government has considerable
discretion: the legislative branch is free to
decide what statutes it will write, as long as it
stays within its enumerated powers and
respects the constitutionally protected rights of
individuals. Likewise, the judicial branch has a
degree of judicial discretion, and the executive
branch also has various discretionary powers
including prosecutorial discretion.
Scholars continue to debate whether the U.S. Constitution adopted a particular interpretation of
the "rule of law," and if so, which one. For example, Law Professor John Harrison asserts that
the word "law" in the Constitution is simply defined as that which is legally binding, rather than
being "defined by formal or substantive criteria," and therefore judges do not have discretion to
decide that laws fail to satisfy such unwritten and vague criteria. Law Professor Frederick Mark
Gedicks disagrees, writing that Cicero, Augustine, Thomas Aquinas, and the framers of the U.S.
Constitution believed that an unjust law was not really a law at all.
Some modern scholars contend that the rule of law has been corroded during the past century by
the instrumental view of law promoted by legal realists such as Oliver Wendell Holmes and
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Roscoe Pound. For example, Professor Brian Tamanaha asserts: "The rule of law is a centuriesold
ideal, but the notion that law is a means to an end became entrenched only in the course of
the nineteenth and twentieth centuries."
Others argue that the rule of law has survived but was transformed to allow for the exercise of
discretion by administrators. For much of American history, the dominant notion of the rule of
law, in this setting, has been some version of A. V. Dicey's: ―no man is punishable or can be
lawfully made to suffer in body or goods except for a distinct breach of law established in the
ordinary legal manner before the ordinary Courts of the land.‖ That is, individuals should be able
to challenge an administrative order by bringing suit in a court of general jurisdiction. As the
dockets of worker compensation commissions, public utility commissions and other agencies
burgeoned, it soon became apparent that letting judges decide for themselves all the facts in a
dispute (such as the extent of an injury in a worker's compensation case) would overwhelm the
courts and destroy the advantages of specialization that led to the creation of administrative
agencies in the first place. Even Charles Evans Hughes, a Chief Justice of the United States,
believed ―you must have administration, and you must have administration by administrative
officers.‖ By 1941, a compromise had emerged. If administrators adopted procedures that moreor-less
tracked "the ordinary legal manner" of the courts, further review of the facts by "the
ordinary Courts of the land" was unnecessary. That is, if you had your "day in commission," the
rule of law did not require a further "day in court." Thus Dicey's rule of law was recast into a
purely procedural form.
James Wilson said during the Philadelphia Convention in 1787 that, "Laws may be unjust, may
be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify
the Judges in refusing to give them effect." George Mason agreed that judges "could declare an
unconstitutional law void. But with regard to every law, however unjust, oppressive or
pernicious, which did not come plainly under this description, they would be under the necessity
as judges to give it a free course." Chief Justice John Marshall (joined by Justice Joseph Story)
took a similar position in 1827: "When its existence as law is denied, that existence cannot be
proved by showing what are the qualities of a law."
East Asian cultures are influenced by two schools of thought, Confucianism, which advocated
good governance as rule by leaders who are benevolent and virtuous, and Legalism, which
advocated strict adherence to law. The influence of one school of thought over the other has
varied throughout the centuries. One study indicates that throughout East Asia, only South
Korea, Singapore, Japan, Taiwan and Hong Kong have societies that are robustly committed to a
law-bound state. According to Awzar Thi, a member of the Asian Human Rights Commission,
the rule of law in Thailand, Cambodia, and most of Asia is weak or nonexistent:
Apart from a number of states and territories, across the continent there is a huge gulf between
the rule of law rhetoric and reality. In Thailand, the police force is an organized crime gang. In
Cambodia, judges are proxies for the ruling political party ... That a judge may harbor political
prejudice or apply the law unevenly are the smallest worries for an ordinary criminal defendant
in Asia. More likely ones are: Will the police fabricate the evidence? Will the prosecutor bother
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to show up? Will the judge fall asleep? Will I be poisoned in prison? Will my case be completed
within a decade?
In countries such as China and Vietnam, the transition to a market economy has been a major
factor in a move toward the rule of law, because a rule of law is important to foreign investors
and to economic development. It remains unclear whether the rule of law in countries like China
and Vietnam will be limited to commercial matters or will spill into other areas as well, and if so
whether that spillover will enhance prospects for related values such as democracy and human
rights. The rule of law in China has been widely discussed and debated by both legal scholars
and politicians in China.
In Thailand, a kingdom that has had a constitution since the initial attempt to overthrow the
absolute monarchy system in 1932, the rule of law has been more of a principle than actual
practice. Ancient prejudices and political bias have been present in the three branches of
government with each of their foundings, and justice has been processed formally according to
the law but in fact more closely aligned with royalist principles that are still advocated in the 21st
century. In November 2013, Thailand faced still further threats to the rule of law when the
executive branch rejected a supreme court decision over how to select senators.
In India, the longest constitutional text in the history of the world has governed that country
since 1950. Although the Constitution of India may have been intended to provide details that
would limit the opportunity for judicial discretion, the more text there is in a constitution the
greater opportunity the judiciary may have to exercise judicial review. According to Indian
journalist Harish Khare, "The rule of law or rather the Constitution [is] in danger of being
supplanted by the rule of judges."
Japan had centuries of tradition prior to World War II, during which there were laws, but they
did not provide a central organizing principle for society, and they did not constrain the powers
of government (Boadi, 2001). As the 21st century began, the percentage of people who were
lawyers and judges in Japan remained very low relative to western Europe and the United States,
and legislation in Japan tended to be terse and general, leaving much discretion in the hands of
Worldwide Organizational Promotion
Various organizations are involved in promoting the rule of law.
International Commission of Jurists
In 1959, an international gathering of over 185 judges, lawyers, and law professors from 53
countries, meeting in New Delhi and speaking as the International Commission of Jurists, made a
declaration as to the fundamental principle of the rule of law. This was the Declaration of Delhi.
They declared that the rule of law implies certain rights and freedoms, that it implies an
independent judiciary, and that it implies social, economic and cultural conditions conducive to
human dignity. The Declaration of Delhi did not, however, suggest that the rule of law requires
legislative power to be subject to judicial review.
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The Secretary-General of the United Nations defines the rule of law as:
a principle of governance in which all persons, institutions and entities, public and private,
including the State itself, are accountable to laws that are publicly promulgated, equally enforced
and independently adjudicated, and which are consistent with international human rights norms
and standards. It requires, as well, measures to ensure adherence to the principles of supremacy
of law, equality before the law, accountability to the law, fairness in the application of the law,
separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness
and procedural and legal transparency.
The General Assembly has considered rule of law as an agenda item since 1992, with renewed
interest since 2006 and has adopted resolutions at its last three sessions. The Security Council
has held a number of thematic debates on the rule of law, and adopted resolutions emphasizing
the importance of these issues in the context of women, peace and security, children in armed
conflict, and the protection of civilians in armed conflict. The Peacebuilding Commission has
also regularly addressed rule of law issues with respect to countries on its agenda. The Vienna
Declaration and Programme of Action also requires the rule of law be included in human rights
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International Bar Association
The Council of the International Bar Association passed a resolution in 2009 endorsing a
substantive or "thick" definition of the rule of law:
An independent, impartial judiciary; the presumption of innocence; the right to a fair and public
trial without undue delay; a rational and proportionate approach to punishment; a strong and
independent legal profession; strict protection of confidential communications between lawyer
and client; equality of all before the law; these are all fundamental principles of the Rule of Law.
Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading
treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable.
The Rule of Law is the foundation of a civilised society. It establishes a transparent process
accessible and equal to all. It ensures adherence to principles that both liberate and protect. The
IBA calls upon all countries to respect these fundamental principles. It also calls upon its
members to speak out in support of the Rule of Law within their respective communities.
World Justice Project
As used by the World Justice Project, a non-profit organization committed to advancing the rule
of law around the world, the rule of law refers to a rules-based system in which the following
four universal principles are upheld:
1. The government and its officials and agents are accountable under the law;
2. The laws are clear, publicized, stable, fair, and protect fundamental rights, including the
security of persons and property;
3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and
4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or
representatives, and judicial officers who are of sufficient number, have adequate resources, and
reflect the makeup of the communities they serve.
The World Justice Project has developed an Index to measure the extent to which countries
adhere to the rule of law in practice. The WJP Rule of Law Index is composed of 9 factors and
52 sub-factors, and covers a variety of dimensions of the rule of law —such as whether
government officials are accountable under the law, and whether legal institutions protect
fundamental rights and allow ordinary people access to justice.
One important aspect of the rule-of-law initiatives is the study and analysis of the rule of law’s
impact on economic development. The rule-of-law movement cannot be fully successful in
transitional and developing countries without an answer to the question: does the rule of law
matter for economic development or not? Constitutional economics is the study of the
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compatibility of economic and financial decisions within existing constitutional law frameworks,
and such a framework includes government spending on the judiciary, which, in many
transitional and developing countries, is completely controlled by the executive. It is useful to
distinguish between the two methods of corruption of the judiciary: corruption by the executive
branch, in contrast to corruption by private actors.
The standards of constitutional economics can be used during annual budget process, and if that
budget planning is transparent then the rule of law may benefit. The availability of an effective
court system, to be used by the civil society in situations of unfair government spending and
executive impoundment of previously authorized appropriations, is a key element for the success
of the rule-of-law endeavor.
The Rule of Law is especially important as an influence on the economic development in
developing and transitional countries. To date, the term ―rule of law‖ has been used primarily in
the English-speaking countries, and it is not yet fully clarified even with regard to such wellestablished
democracies as, for instance, Sweden, Denmark, France, Germany, or Japan. A
common language between lawyers of common law and civil law countries as well as between
legal communities of developed and developing countries is critically important for research of
links between the rule of law and real economy.
The modern economist F. A. Hayek analyzed how the Rule of Law might be beneficial to the
free market. Hayek proposed that under the Rule of Law individuals would be able to make wise
investments and future plans with some confidence in a successful return on investment when he
stated: "under the Rule of Law the government is prevented from stultifying individual efforts by
ad hoc action. Within the known rules of the game the individual is free to pursue his personal
ends and desires, certain that the powers of government will not be used deliberately to frustrate
his efforts." Hayek defined the Rule of Law as the opposite of arbitrary government: "The
distinction we have drawn before between the creation of a permanent framework of laws within
which the productive activity is guided by individual decisions and the direction of economic
activity by a central authority is thus really a particular case of the more general distinction
between the Rule of Law and arbitrary government. Under the first the government confines
itself to fixing rules determining the conditions under which the available resources may be used,
leaving to the individuals the decision for what ends they are to be used. Under the second the
government directs the use of the means of production to particular ends. The first type of rules
can be made in advance, in the shape of formal rules which do not aim at the wants and needs of
particular people. They are intended to be merely instrumental in the pursuit of people's various
individual ends. And they are, or ought to be, intended for such long periods that it is impossible
to know whether they will assist particular people more than others. They could almost be
described as a kind of instrument of production, helping people to predict the behavior of those
with whom they must collaborate, rather than as efforts toward the satisfaction of particular
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Rule of Higher Law
The Rule According To A Higher
Law means that no law may be enforced by
the government unless it conforms with
certain universal principles (written or
unwritten) of fairness, morality, and justice.
Thus, the rule according to a higher law may
serve as a practical legal criterion to qualify
the instances of political or economical
decision-making, when a government, even
though acting in conformity with clearly
defined and properly enacted legal rules, still
produces results which many observers find
unfair or unjust.
"Higher law" can be interpreted in this context as the divine or natural law or basic legal values,
established in the international law, – the choice depending on the viewpoint. But this is
definitely a Law above the law. And it is in this capacity that it possesses the equal legal value
for both the common and civil law jurisdictions, as opposed to natural law which is largely
associated with common law. "To recognize the necessary connection between the rule of law as
an ideal and well-constructed constitutional government does not and should not be taken to
imply that all states can or should maintain the same constitutional structures in practice".
The rule according to higher law is a practical approach to the implementation of the higher law
theory which creates a bridge of mutual understanding (with regard to universal legal values)
between the English language doctrine of the rule of law, traditional for the countries of common
law, and the originally German doctrine of Rechtsstaat, translated into other languages of
continental Europe as État de droit (Fr.), Estado de derecho (Sp.), Stato di diritto (It.), and
Правовое государство (Ru.). The latter doctrine is the product of continental European legal
thought which had adopted it from German legal philosophy. Its name can be translated into
English as ―legal state‖ or "state of law" or "state of rights" or "constitutional state" –
consistently meaning the state in which the exercise of governmental power is kept in check by
the higher law rather than by the changeable law established by this state. Amartya Sen
mentioned that the legal theorists in ancient India used term of classical Sanscrit "nyaya" in the
sense of not just a matter of judging institutions and rules, but of judging the societies
Before the U.S. Civil War, African Americans were legally denied equal rights and freedoms
pursuant to formally valid codes prescribing the relations between master and slave. Although
these codes were de jure fully suitable for application in legal practice, their enforcement by the
then U.S. government de facto violated basic human rights of a significant part of the population.
William H. Seward famously proclaimed that slavery is forbidden under "a higher law than the
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Generally speaking, the occurrence of such "justly enacted unjust laws" fully depends on the
stance taken by the country's political leadership towards the rule of law principle.
In some countries, the political leaders assert that the rule of law is purely a procedural concept.
Therefore, they argue that any government may strip its subjects of their fundamental freedoms
or infringe their vital interests so long as this is done by way of a duly implemented legal
mechanism. For example, at the Nuremberg trials, in an attempt to justify their crimes against
Jewish and Romany population of Europe during World War II, some of the former leaders of
Nazi Germany argued that they had broken none of the laws effective when Hitler had been in
power. It was only by invoking the rule according to a higher law that the Allied prosecutors
were able to legitimately overcome such defenses.
In other countries, conversely, the political leaders assert that all written laws must be kept in
line with the universal principles of morality, fairness, and justice. These leaders argue that, as a
necessary corollary to the axiom that "no one is above the law," the rule of law requires the
government to treat all persons equally under the law. However, the proclaimed right to equal
treatment is susceptible to instantly becoming void each time the government denies a sufficient
level of respect, dignity, and autonomy to a certain class of individuals or to human rights in
general." Therefore, the unwritten and universally self-explanatory principles of equality,
autonomy, dignity, and respect are said to overrule conventional written laws enacted by the
government. It is these principles that are often referred to as "natural law." They also constitute
the basis of the "higher law theory."
The Rechtsstaat doctrine (Legal state, State of right, Constitutional state, Constitutional
government) was first introduced by the German philosopher Immanuel Kant in his latest works
completed after the U.S. and French constitutions had been adopted in the late 18th century.
Kant’s approach is based on the supremacy of country’s written constitution created using
principles of the Higher Law. This supremacy meant creating guarantees for the implementation
of his central idea: a permanently peaceful life as a basic condition for the happiness and
prosperity of the citizens. Kant was basing his doctrine exclusively on the idea of
constitutionalism and constitutional government.
Kant had formulated the main problem of constitutionalism as an instrument for the practical
implementation of the Higher Law as follows, ―The constitution of a state is eventually based on
the morals of its citizens, which, in its turn, is based on the goodness of this constitution.‖ This
idea of Kant’s has become the foundation for the constitutional theory of the 21st century. The
Legal state concept is based on the ideas introduced by Immanuel Kant, for example, in his
Groundwork of the Metaphysic of Morals:
―The task of establishing a universal and permanent peaceful life is not only a part of theory of
law within the framework of pure reason, but per se an absolute and ultimate goal. To achieve
this goal, a state must become the community of a large number of people, living provided with
legislative guarantees of their property rights secured by a common constitution. The supremacy
of this constitution… must be derived a priori from the considerations for achievement of the
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absolute ideal in the most just and fair organization of people’s life under the aegis of public
The Russian legal system, born in the 19th century as a result of the transformations initiated by
the reforms of the Emperor Alexander II, was (and still is) based primarily upon the German
legal tradition. It was from the latter that Russia had adopted the doctrine of Rechtsstaat, which
literally translates as "Legal State." Its closest English analogue is "the rule of law." The Russian
Legal state concept adopts the written constitution as the country's supreme law (the rule of
constitution). It is a fundamental but undefined principle that appears in the very first dispositive
provision of Russia’s post-Communist constitution: "The Russian Federation – Russia –
constitutes a democratic federative legal state with a republican form of governance." Similarly,
the very first dispositive provision of Ukraine’s Constitution declares that "Ukraine is a
sovereign and independent, democratic, social, legal state." Hence, the effort to invest meaning
to the "Legal State" definition is anything but theoretical.
Valery Zorkin, President of the Constitutional Court of Russia, wrote in 2003, "Becoming a legal
state has long been our ultimate goal, and we have certainly made serious progress in this
direction over the past several years. However, no one can say now that we have reached this
destination. Such a legal state simply cannot exist without a lawful and just society. Here, as in
no other sphere of our life, the state reflects the level of maturity reached by the society."
The Russian concept of Legal state has adopted many segments of constitutional economics
which serves as a practical implementation of the higher law theory in economics.
Economist James M. Buchanan argues that, in the framework of constitutional government, any
governmental intervention or regulation must be conditioned by the three following assumptions.
First, every failure of the market economy to function smoothly and perfectly can be corrected
by governmental intervention. Second, those holding political office and manning the
bureaucracies are altruistic upholders of the public interest, unconcerned with their own personal
economic well-being. And third, changing the government responsibilities towards more
intervention and control will not profoundly and perversely affect the social and economic life.
Buchanan rejects "any organic conception of the state as superior in wisdom, to the individuals
who are its members." This philosophical position is, in fact, the very subject matter of
constitutional economics. A constitutional economics approach allows for a combined economic
and constitutional analysis, helping to avoid a one-dimensional understanding. Buchanan,
together with Kant, believes that a constitution in its capacity as the Higher Law, intended for
use by at least several generations of citizens, must be able to adjust itself for pragmatic
economic decisions, while balancing interests of the state and society against those of
individuals, with their constitutional rights to personal freedom and private happiness.
Buchanan also outlines importance of protection of the moral principles underlying
constitutional norms. He writes that "the ethics of constitutional citizenship is not directly
comparable to ethical behavior in interaction with other persons within the constraints imposed
by the rules of an existing regime. An individual may be fully responsible, in the standard ethical
sense, and yet fail to meet the ethical requirement of constitutional citizenship." [
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Political Corruption of The Judiciary
Political Corruption is the use of powers by government
officials for illegitimate private gain. An illegal act by an
officeholder constitutes political corruption only if the act is
directly related to their official duties, is done under color of
law or involves trading in influence.
Forms of corruption vary, but include bribery, extortion,
cronyism, nepotism, patronage, graft, and embezzlement.
Corruption may facilitate criminal enterprise such as drug
trafficking, money laundering, and human trafficking, though is not restricted to these activities.
Misuse of government power for other purposes, such as repression of political opponents and
general police brutality, is not considered political corruption. Neither are illegal acts by private
persons or corporations not directly involved with the government.
The activities that constitute illegal corruption differ depending on the country or jurisdiction.
For instance, some political funding practices that are legal in one place may be illegal in
another. In some cases, government officials have broad or ill-defined powers, which make it
difficult to distinguish between legal and illegal actions. Worldwide, bribery alone is estimated
to involve over 1 trillion US dollars annually. A state of unrestrained political corruption is
known as a kleptocracy, literally meaning "rule by thieves".
Some forms of corruption – now called "institutional corruption" – are distinguished from
bribery and other kinds of obvious personal gain. A similar problem of corruption arises in any
institution that depends on financial support from people who have interests that may conflict
with the primary purpose of the institution.
There are two methods of corruption of the judiciary: the state (through budget planning and
various privileges), and the private. Budget of the judiciary in many transitional and developing
countries is almost completely controlled by the executive. The latter undermines the separation
of powers, as it creates a critical financial dependence of the judiciary. The proper national
wealth distribution including the government spending on the judiciary is subject of the
Effects on Politics, Administration, and Institutions
In politics, corruption undermines democracy and good governance by flouting or even
subverting formal processes. Corruption in elections and in the legislature reduces accountability
and distorts representation in policymaking; corruption in the judiciary compromises the rule of
law; and corruption in public administration results in the inefficient provision of services. It
violates a basic principle of republicanism regarding the centrality of civic virtue. More
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generally, corruption erodes the institutional capacity of government if procedures are
disregarded, resources are siphoned off, and public offices are bought and sold. Corruption
undermines the legitimacy of government and such democratic values as trust and tolerance.
Recent evidence suggests that variation in the levels of corruption amongst high-income
democracies can vary significantly depending on the level of accountability of decision-makers.
Evidence from fragile states also shows that corruption and bribery can adversely impact trust in
In the private sector, corruption increases the cost of business through the price of illicit
payments themselves, the management cost of negotiating with officials and the risk of breached
agreements or detection. Although some claim corruption reduces costs by cutting bureaucracy,
the availability of bribes can also induce officials to contrive new rules and delays. Openly
removing costly and lengthy regulations are better than covertly allowing them to be bypassed by
using bribes. Where corruption inflates the cost of business, it also distorts the playing field,
shielding firms with connections from competition and thereby sustaining inefficient firms.
Corruption also generates economic distortions in the public sector by diverting public
investment into capital projects where bribes and kickbacks are more plentiful. Officials may
increase the technical complexity of public sector projects to conceal or pave the way for such
dealings, thus further distorting investment. Corruption also lowers compliance with
construction, environmental, or other regulations, reduces the quality of government services and
infrastructure, and increases budgetary pressures on government.
Economists argue that one of the factors behind the differing economic development in Africa
and Asia is that in Africa, corruption has primarily taken the form of rent extraction with the
resulting financial capital moved overseas rather than invested at home (hence the stereotypical,
but often accurate, image of African dictators having Swiss bank accounts). In Nigeria, for
example, more than $400 billion was stolen from the treasury by Nigeria's leaders between 1960
and 1999. University of Massachusetts Amherst researchers estimated that from 1970 to 1996,
capital flight from 30 Sub-Saharan countries totaled $187bn, exceeding those nations' external
debts. (The results, expressed in retarded or suppressed development, have been modeled in
theory by economist Mancur Olson.) In the case of Africa, one of the factors for this behavior
was political instability, and the fact that new governments often confiscated previous
government's corruptly obtained assets. This encouraged officials to stash their wealth abroad,
out of reach of any future expropriation. In contrast, Asian administrations such as Suharto's
New Order often took a cut on business transactions or provided conditions for development,
through infrastructure investment, law and order, etc.
Environmental and Social Effect
Corruption is often most evident in countries with the smallest per capita incomes, relying on
foreign aid for health services. However, political exploitation of these funds have been noted to
occur in the past, especially in the Sub-Saharan African nations, where it was reported in the
2006 World Bank Report that about half of the funds that were donated for health usages, were
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never invested into the health sectors or given to those needing medical attention. Instead, they
were expended through "counterfeit drugs, siphoning off of drugs to the black market, and
payments to ghost employees". Ultimately, there is a sufficient amount of money for health in
developing countries, but this cash is given to the wrong hands, which leads to political and
governmental corruption that takes away medical attention necessary for the citizens of these
regions, and rather, used for personal gain.
Corruption facilitates environmental destruction. Corrupt countries may formally have legislation
to protect the environment, it cannot be enforced if officials can easily be bribed. The same
applies to social rights worker protection, unionization prevention, and child labor. Violation of
these laws rights enables corrupt countries to gain illegitimate economic advantage in the
The Nobel Prize-winning economist
Amartya Sen has observed that
"there is no such thing as an
apolitical food problem."
While drought and other naturally occurring
events may trigger famine conditions, it is
government action or inaction that
determines its severity, and often
even whether or not a famine will occur.
Governments with strong tendencies
towards kleptocracy can undermine food
security even when harvests are good.
Officials often steal state property. In Bihar,
India, more than 80% of
the subsidized food aid to
poor is stolen by corrupt
officials. Similarly, food
aid is often robbed at gunpoint by governments, criminals,
and warlords alike, and sold for a
profit. The 20th century is full of
many examples of governments undermining the food security of their own nations – sometimes
Effects on Humanitarian Aid
The scale of humanitarian aid to the poor and unstable regions of the world grows, but it is
highly vulnerable to corruption, with food aid, construction and other highly valued assistance as
the most at risk. Food aid can be directly and physically diverted from its intended destination, or
indirectly through the manipulation of assessments, targeting, registration and distributions to
favor certain groups or individuals. Elsewhere, in construction and shelter, there are numerous
opportunities for diversion and profit through substandard workmanship, kickbacks for contracts
and favoritism in the provision of valuable shelter material. Thus while humanitarian aid
agencies are usually most concerned about aid being diverted by including too many, recipients
themselves are most concerned about exclusion. Access to aid may be limited to those with
connections, to those who pay bribes or are forced to give sexual favors. Equally, those able to
do so may manipulate statistics to inflate the number of beneficiaries and siphon off additional
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Other Areas: Health, Public Safety, Education, Trade Unions, Etc.
Corruption is not specific to poor, developing, or transition countries. In western countries, cases
of bribery and other forms of corruption in all possible fields exist: under-the-table payments
made to reputed surgeons by patients attempting to be on top of the list of forthcoming surgeries,
bribes paid by suppliers to the automotive industry in order to sell low-quality connectors used
for instance in safety equipment such as airbags, bribes paid by suppliers to manufacturers of
defibrillators (to sell low-quality capacitors), contributions paid by wealthy parents to the "social
and culture fund" of a prestigious university in exchange for it to accept their children, bribes
paid to obtain diplomas, financial and other advantages granted to unionists by members of the
executive board of a car manufacturer in exchange for employer-friendly positions and votes,
etc. Examples are endless. These various manifestations of corruption can ultimately present a
danger for the public health; they can discredit specific, essential institutions or social
Corruption can also affect the various components of sports activities (referees, players, medical
and laboratory staff involved in anti-doping controls, members of national sport federation and
international committees deciding about the allocation of contracts and competition places).
Cases exist against (members of) various types of non-profit and non-government organizations,
as well as religious organizations.
Ultimately, the distinction between public and private sector corruption sometimes appears rather
artificial, and national anti-corruption initiatives may need to avoid legal and other loopholes in
the coverage of the instruments.
Types of Corruption
A bribe is a payment given personally to a government official in exchange of his use of official
powers. Bribery requires two participants: one to give the bribe, and one to take it. Either may
initiate the corrupt offering; for example, a customs official may demand bribes to let through
allowed (or disallowed) goods, or a smuggler might offer bribes to gain passage. In some
countries the culture of corruption extends to every aspect of public life, making it extremely
difficult for individuals to stay in business without resorting to bribes. Bribes may be demanded
in order for an official to do something he is already paid to do. They may also be demanded in
order to bypass laws and regulations. In addition to using bribery for private financial gain, they
are also used to intentionally and maliciously cause harm to another (i.e. no financial incentive).
In some developing nations, up to half of the population has paid bribes during the past 12
In recent years, efforts have been made by the international community to encourage countries to
dissociate and incriminate as separate offences, active and passive bribery. Active bribery can be
defined for instance as the promising, offering or giving by any person, directly or indirectly, of
any undue advantage [to any public official], for himself or herself or for anyone else, for him or
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her to act or refrain from acting in the exercise of his or her
functions. (article 2 of the Criminal Law Convention on
Corruption (ETS 173) of the Council of Europe). Passive
bribery can be defined as the request or receipt [by any
public official], directly or indirectly, of any undue
advantage, for himself or herself or for anyone else, or the
acceptance of an offer or a promise of such an advantage,
to act or refrain from acting in the exercise of his or her
functions (article 3 of the Criminal Law Convention on
Corruption (ETS 173)). The reason for this dissociation is
to make the early steps (offering, promising, requesting an
advantage) of a corrupt deal already an offence and, thus, to
give a clear signal (from a criminal policy point of view)
that bribery is not acceptable. Furthermore, such a
dissociation makes the prosecution of bribery offences
easier since it can be very difficult to prove that two parties
(the bribe-giver and the bribe-taker) have formally agreed
upon a corrupt deal. In addition, there is often no such
formal deal but only a mutual understanding, for instance
when it is common knowledge in a municipality that to obtain a building permit one has to pay a
"fee" to the decision maker to obtain a favorable decision. A working definition of corruption is
also provided as follows in article 3 of the Civil Law Convention on Corruption (ETS 174):
For the purpose of this Convention, "corruption" means requesting, offering, giving or accepting, directly
or indirectly, a bribe or any other undue advantage or prospect thereof, which distorts the proper
performance of any duty or behavior required of the recipient of the bribe, the undue advantage or the
Trading in Influence
Trading in influence, or influence peddling, refers a person selling his/her influence over the
decision making process to benefit a third party (person or institution). The difference with
bribery is that this is a tri-lateral relation. From a legal point of view, the role of the third party
(who is the target of the influence) does not really matter although he/she can be an accessory in
some instances. It can be difficult to make a distinction between this form of corruption and
some forms of extreme and loosely regulated lobbying where for instance law- or decisionmakers
can freely "sell" their vote, decision power or influence to those lobbyists who offer the
highest compensation, including where for instance the latter act on behalf of powerful clients
such as industrial groups who want to avoid the passing of specific environmental, social, or
other regulations perceived as too stringent, etc. Where lobbying is (sufficiently) regulated, it
becomes possible to provide for a distinctive criteria and to consider that trading in influence
involves the use of "improper influence", as in article 12 of the Criminal Law Convention on
Corruption (ETS 173) of the Council of Europe.
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Patronage refers to favoring supporters, for example with government employment. This may be
legitimate, as when a newly elected government changes the top officials in the administration in
order to effectively implement its policy. It can be seen as corruption if this means that
incompetent persons, as a payment for supporting the regime, are selected before more able ones.
In nondemocracies many government officials are often selected for loyalty rather than ability.
They may be almost exclusively selected from a particular group (for example, Sunni Arabs in
Saddam Hussein's Iraq, the nomenklatura in the Soviet Union, or the Junkers in Imperial
Germany) that support the regime in return for such favors. A similar problem can also be seen
in Eastern Europe, for example in Romania, where the government is often accused of patronage
(when a new government comes to power it rapidly changes most of the officials in the public
Nepotism and Cronyism
Favoring relatives (nepotism) or personal friends (cronyism) of an official is a form of
illegitimate private gain. This may be combined with bribery, for example demanding that a
business should employ a relative of an official controlling regulations affecting the business.
The most extreme example is when the entire state is inherited, as in North Korea or Syria. A
lesser form might be in the Southern United States with Good ol' boys, where women and
minorities are excluded. A milder form of cronyism is an "old boy network", in which appointees
to official positions are selected only from a closed and exclusive social network – such as the
alumni of particular universities – instead of appointing the most competent candidate.
Seeking to harm enemies becomes corruption when official powers are illegitimately used as
means to this end. For example, trumped-up charges are often brought up against journalists or
writers who bring up politically sensitive issues, such as a politician's acceptance of bribes.
Electoral fraud is illegal interference with the process of an election. Acts of fraud affect vote
counts to bring about an election result, whether by increasing the vote share of the favored
candidate, depressing the vote share of the rival candidates, or both. Also called voter fraud, the
mechanisms involved include illegal voter registration, intimidation at polls, and improper vote
Embezzlement is theft of entrusted funds. It is political when it involves public money taken by a
public official for use by anyone not specified by the public. A common type of embezzlement is
that of personal use of entrusted government resources; for example, when an official assigns
public employees to renovate his own house.
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A kickback is an official's share of misappropriated funds allocated from his or her organization
to an organization involved in corrupt bidding. For example, suppose that a politician is in
charge of choosing how to spend some public funds. He can give a contract to a company that is
not the best bidder, or allocate more than they deserve. In this case, the company benefits, and in
exchange for betraying the public, the official receives a kickback payment, which is a portion of
the sum the company received. This sum itself may be all or a portion of the difference between
the actual (inflated) payment to the company and the (lower) market-based price that would have
been paid had the bidding been competitive.
Another example of a kickback would be if a judge receives a portion of the profits that a
business makes in exchange for his judicial decisions.
Kickbacks are not limited to government officials; any situation in which people are entrusted to
spend funds that do not belong to them are susceptible to this kind of corruption.
An unholy alliance is a coalition among seemingly antagonistic groups for ad hoc or hidden gain,
generally some influential non-governmental group forming ties with political parties, supplying
funding in exchange for the favorable treatment. Like patronage, unholy alliances are not
necessarily illegal, but unlike patronage, by its deceptive nature and often great financial
resources, an unholy alliance can be much more dangerous to the public interest. An early use of
the term was by former US President Theodore "Teddy" Roosevelt:
"To destroy this invisible Government, to dissolve the unholy alliance between corrupt
business and corrupt politics is the first task of the statesmanship of the day." – 1912
Progressive Party Platform, attributed to Roosevelt and quoted again in his
autobiography, where he connects trusts and monopolies (sugar interests, Standard Oil,
etc.) to Woodrow Wilson, Howard Taft, and consequently both major political parties.
Involvement in organized crime
An illustrative example of official involvement in organized crime can be found from 1920s and
1930s Shanghai, where Huang Jinrong was a police chief in the French concession, while
simultaneously being a gang boss and co-operating with Du Yuesheng, the local gang ringleader.
The relationship kept the flow of profits from the gang's gambling dens, prostitution, and
protection rackets undisturbed.
The United States accused Manuel Noriega's government in Panama of being a
"narcokleptocracy", a corrupt government profiting on illegal drug trade. Later the U.S. invaded
Panama and captured Noriega.
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Conditions Favorable for Corruption
It is argued that the following conditions are favorable for corruption:
Lacking freedom of information legislation. For example: The Indian Right to
Information Act 2005 is perceived to have "already engendered mass movements
in the country that is bringing the lethargic, often corrupt bureaucracy to its knees
and changing power equations completely."
Lack of investigative reporting in the local media.
Contempt for or negligence of exercising freedom of speech and freedom of the
Weak accounting practices, including lack of timely financial management.
Lack of measurement of corruption. For example, using regular surveys of
households and businesses in order to quantify the degree of perception of
corruption in different parts of a nation or in different government institutions
may increase awareness of corruption and create pressure to combat it. This will
also enable an evaluation of the officials who are fighting corruption and the
Tax havens which tax their own citizens and companies but not those from other
nations and refuse to disclose information necessary for foreign taxation. This
enables large-scale political corruption in the foreign nations.
Lacking control of the government.
Lacking civic society and non-governmental organizations which monitor the
An individual voter may have a rational ignorance regarding politics, especially in
nationwide elections, since each vote has little weight.
Weak civil service, and slow pace of reform.
Weak rule of law.
Weak legal profession.
Weak judicial independence.
Lacking protection of whistleblowers.
• Government Accountability Project
Lack of benchmarking, that is continual detailed evaluation of procedures and
comparison to others who do similar things, in the same government or others, in
particular comparison to those who do the best work. The Peruvian organization
Ciudadanos al Dia has started to measure and compare transparency, costs, and
efficiency in different government departments in Peru. It annually awards the
best practices which has received widespread media attention. This has created
competition among government agencies in order to improve.
Individual officials routinely handle cash, instead of handling payments by giro or
on a separate cash desk – illegitimate withdrawals from supervised bank accounts
are much more difficult to conceal.
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Public funds are centralized rather than distributed. For example, if $1,000 is
embezzled from a local agency that has $2,000 funds, it is easier to notice than
from a national agency with $2,000,000 funds. See the principle of subsidiarity.
Large, unsupervised public investments.
Pay disproportionately lower than that of the average citizen.
Government licenses needed to conduct business, e.g., import licenses, encourage
bribing and kickbacks.
Long-time work in the same position may create relationships inside and outside
the government which encourage and help conceal corruption and favoritism.
Rotating government officials to different positions and geographic areas may
help prevent this; for instance certain high rank officials in French government
services (e.g. treasurer-paymasters general) must rotate every few years.
Costly political campaigns, with expenses exceeding normal sources of political
funding, especially when funded with taxpayer money.
A single group or family controlling most of the key government offices. Lack of
laws forbidding and limiting number of members of the same family to be in
Less interaction with officials reduces the opportunities for corruption. For
example, using the Internet for sending in required information, like applications
and tax forms, and then processing this with automated computer systems. This
may also speed up the processing and reduce unintentional human errors. See e-
A windfall from exporting abundant natural resources may encourage corruption.
War and other forms of conflict correlate with a breakdown of public security.
o Self-interested closed cliques and "old boy networks".
o Family-, and clan-centered social structure, with a tradition of
nepotism/favouritism being acceptable.
o A gift economy, such as the Soviet blat system, emerges in a Communist centrally
o Lacking literacy and education among the population.
o Frequent discrimination and bullying among the population.
o Tribal solidarity, giving benefits to certain ethnic groups. In India for example,
the political system, it has become common that the leadership of national and
regional parties are passed from generation to generation.
o creating a system in which a family holds the center of power. Some examples are
most of the Dravidian parties of south India and also the Congress party, which is
one of the two major political parties in India.
o Lack of strong laws which forbid members of the same family to contest elections
and be in office as in India where local elections are often contested between
members of the same powerful family by standing in opposite parties so that
whoever is elected that particular family is at tremendous benefit.
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Thomas Jefferson observed a tendency for "The functionaries of every government ... to
command at will the liberty and property of their constituents. There is no safe deposit [for
liberty and property] ... without information. Where the press is free, and every man able to read,
all is safe."
Recent research supports Jefferson's claim. Brunetti and Weder found "evidence of a significant
relationship between more press freedom and less corruption in a large cross-section of
countries." They also presented "evidence which suggests that the direction of causation runs
from higher press freedom to lower corruption." Adserà, Boix, and Payne found that increases in
newspaper readership led to increased political accountability and lower corruption in data from
roughly 100 countries and from different states in the US.
Snyder and Strömberg found "that a poor fit between newspaper markets and political districts
reduces press coverage of politics. ... Congressmen who are less covered by the local press work
less for their constituencies: they are less likely to stand witness before congressional hearings ...
. Federal spending is lower in areas where there is less press coverage of the local members of
congress." Schulhofer-Wohl and Garrido found that the year after the Cincinnati Post closed in
2007, "fewer candidates ran for municipal office in the Kentucky suburbs most reliant on the
Post, incumbents became more likely to win reelection, and voter turnout and campaign
An analysis of the evolution of mass media in the US and Europe since World War II noted
mixed results from the growth of the Internet: "The digital revolution has been good for freedom
of expression [and] information [but] has had mixed effects on freedom of the press": It has
disrupted traditional sources of funding, and new forms of Internet journalism have replaced only
a tiny fraction of what's been lost.
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Size of Public Sector
Extensive and diverse public spending is, in itself, inherently at risk of cronyism, kickbacks, and
embezzlement. Complicated regulations and arbitrary, unsupervised official conduct exacerbate
the problem. This is one argument for privatization and deregulation. Opponents of privatization
see the argument as ideological. The argument that corruption necessarily follows from the
opportunity is weakened by the existence of countries with low to non-existent corruption but
large public sectors, like the Nordic countries. However, these countries score high on the Ease
of Doing Business Index, due to good and often simple regulations, and have rule of law firmly
established. Therefore, due to their lack of corruption in the first place, they can run large public
sectors without inducing political corruption. Recent evidence that takes both the size of
expenditures and regulatory complexity into account has found that high-income democracies
with more expansive state sectors do indeed have higher levels of corruption.
Like other governmental economic activities, also privatization, such as in the sale of
government-owned property, is particularly at the risk of cronyism. Privatizations in Russia,
Latin America, and East Germany were accompanied by large-scale corruption during the sale of
the state owned companies. Those with political connections unfairly gained large wealth, which
has discredited privatization in these regions. While media have reported widely the grand
corruption that accompanied the sales, studies have argued that in addition to increased operating
efficiency, daily petty corruption is, or would be, larger without privatization, and that corruption
is more prevalent in non-privatized sectors. Furthermore, there is evidence to suggest that
extralegal and unofficial activities are more prevalent in countries that privatized less.
There is the counterpoint, however, that industries with an oligarchy of companies can be quite
corrupt, with collusive price-fixing, pressuring dependent businesses, etc., and only by having a
portion of the market owned by someone other than that oligarchy, i.e. public sector, can keep
them in line. If the public sector company is making money and selling their product for half of
the price of the private sector companies, the private sector companies won't be able to
simultaneously gouge to that degree and keep their customers: the competition keeps them in
line. Private sector corruption can increase the poverty and helplessness of the population, so it
can affect government corruption, in the long-term.
In the European Union, the principle of subsidiarity is applied: a government service should be
provided by the lowest, most local authority that can competently provide it. An effect is that
distribution of funds into multiple instances discourages embezzlement, because even small sums
missing will be noticed. In contrast, in a centralized authority, even minute proportions of public
funds can be large sums of money.
If the highest echelons of the governments also take advantage from corruption or embezzlement
from the state's treasury, it is sometimes referred with the neologism kleptocracy. Members of
the government can take advantage of the natural resources (e.g., diamonds and oil in a few
prominent cases) or state-owned productive industries. A number of corrupt governments have
enriched themselves via foreign aid, which is often spent on showy buildings and armaments.
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A corrupt dictatorship typically results in many years of general hardship and suffering for the
vast majority of citizens as civil society and the rule of law disintegrate. In addition, corrupt
dictators routinely ignore economic and social problems in their quest to amass ever more wealth
The classic case of a corrupt, exploitive dictator often given is the regime of Marshal Mobutu
Sese Seko, who ruled the Democratic Republic of the Congo (which he renamed Zaire) from
1965 to 1997. It is said that usage of the term kleptocracy gained popularity largely in response
to a need to accurately describe Mobutu's regime. Another classic case is Nigeria, especially
under the rule of General Sani Abacha who was de facto president of Nigeria from 1993 until his
death in 1998. He is reputed to have stolen some US$3–4 billion. He and his relatives are often
mentioned in Nigerian 419 letter scams claiming to offer vast fortunes for "help" in laundering
his stolen "fortunes", which in reality turn out not to exist. More than $400 billion was stolen
from the treasury by Nigeria's leaders between 1960 and 1999.
More recently, articles in various financial periodicals, most notably Forbes magazine, have
pointed to Fidel Castro, General Secretary of the Republic of Cuba since 1959, of likely being
the beneficiary of up to $900 million, based on "his control" of state-owned companies.
Opponents of his regime claim that he has used money amassed through weapons sales,
narcotics, international loans, and confiscation of private property to enrich himself and his
political cronies who hold his dictatorship together, and that the $900 million published by
Forbes is merely a portion of his assets, although that needs to be proven.
Opposition and Measurement
Mobile telecommunications and radio broadcasting help to fight corruption, especially in
developing regions like Africa, where other forms of communications are limited. In India, the
anti-corruption bureau fights against corruption, and a new ombudsman bill called Jan Lokpal
Bill is being prepared.
In the 1990s, initiatives were taken at an international level (in particular by the European
Community, the Council of Europe, the OECD) to put a ban on corruption: in 1996, the
Committee of Ministers of the Council of Europe, for instance, adopted a comprehensive
Program of Action against Corruption and, subsequently, issued a series of anti-corruption
the Criminal Law Convention on Corruption (ETS 173);
the Civil Law Convention on Corruption (ETS 174);
the Additional Protocol to the Criminal Law Convention on Corruption (ETS 191);
the Twenty Guiding Principles for the Fight against Corruption (Resolution (97) 24);
the Recommendation on Codes of Conduct for Public Officials (Recommendation No. R
the Recommendation on Common Rules against Corruption in the Funding of Political
Parties and Electoral Campaigns (Rec(2003)4)
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The purpose of these instruments was to address the various forms of corruption (involving the
public sector, the private sector, the financing of political activities, etc.) whether they had a
strictly domestic or also a transnational dimension. To monitor the implementation at national
level of the requirements and principles provided in those texts, a monitoring mechanism – the
Group of States Against Corruption (also known as GRECO) (French: Groupe d'Etats contre la
corruption) was created.
Further conventions were adopted at the regional level under the aegis of the Organization of
American States (OAS or OEA), the African Union, and in 2003, at the universal level under that
of the United Nations Convention against Corruption.
The Global Integrity Index
Measuring corruption statistically is difficult if not impossible due to the illicit nature of the
transaction and imprecise definitions of corruption. While "corruption" indices first appeared in
1995 with the Corruption Perceptions Index CPI, all of these metrics address different proxies
for corruption, such as public perceptions of the extent of the problem.
Transparency International, an anti-corruption NGO, pioneered this field with the CPI, first
released in 1995. This work is often credited with breaking a taboo and forcing the issue of
corruption into high level development policy discourse. Transparency International currently
publishes three measures, updated annually: a CPI (based on aggregating third-party polling of
public perceptions of how corrupt different countries are); a Global Corruption Barometer (based
on a survey of general public attitudes toward and experience of corruption); and a Bribe Payers
Index, looking at the willingness of foreign firms to pay bribes. The Corruption Perceptions
Index is the best known of these metrics, though it has drawn much criticism and may be
declining in influence. In 2013 Transparency International published a report on the
"Government Defence Anti-corruption Index". This index evaluates the risk of corruption in
countries' military sector.
The World Bank collects a range of data on corruption, including survey responses from over
100,000 firms worldwide and a set of indicators of governance and institutional quality.
Moreover, one of the six dimensions of governance measured by the Worldwide Governance
Indicators is Control of Corruption, which is defined as "the extent to which power is exercised
for private gain, including both petty and grand forms of corruption, as well as 'capture' of the
state by elites and private interests." While the definition itself is fairly precise, the data
aggregated into the Worldwide Governance Indicators is based on any available polling:
questions range from "is corruption a serious problem?" to measures of public access to
information, and not consistent across countries. Despite these weaknesses, the global coverage
of these datasets has led to their widespread adoption, most notably by the Millennium Challenge
A number of parties have collected survey data, from the public and from experts, to try and
gauge the level of corruption and bribery, as well as its impact on political and economic
outcomes. A second wave of corruption metrics has been created by Global Integrity, the
International Budget Partnership, and many lesser known local groups. These metrics include the
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Global Integrity Index, first published in 2004. These second wave projects aim to create policy
change by identifying resources more effectively and creating checklists toward incremental
reform. Global Integrity and the International Budget Partnership each dispense with public
surveys and instead uses in-country experts to evaluate "the opposite of corruption" – which
Global Integrity defines as the public policies that prevent, discourage, or expose corruption.
These approaches compliment the first wave, awareness-raising tools by giving governments
facing public outcry a checklist which measures concrete steps toward improved governance.
Typical second wave corruption metrics do not offer the worldwide coverage found in first wave
projects, and instead focus on localizing information gathered to specific problems and creating
deep, "unpackable" content that matches quantitative and qualitative data.
Alternative approaches, such as the British aid agency's Drivers of Change research, skips
numbers and promotes understanding corruption via political economy analysis of who controls
power in a given society.
Institutions Dealing with Political Corruption
Global Witness, an international NGO established in 1993 that works to break the links
between natural resource exploitation, conflict, poverty, corruption, and human rights
Group of States Against Corruption, a body established under the Council of Europe to
monitor the implementation of instruments adopted by member states to combat political
Independent Commission Against Corruption (disambiguation)
International Anti-Corruption Academy
Transparency International, a non-governmental organization that monitors and
publicizes corporate and political corruption in international development
o Corruption Perceptions Index, published yearly by Transparency International
TrustLaw, a service of the Thomson Reuters Foundation is a global hub for free legal
assistance and news and information on anti-corruption
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Conflicts of Interest
A Conflict of Interest is a situation in which a person or organization is involved in multiple
interests (financial, emotional, or otherwise), one of which could possibly corrupt the
motivation of the individual or organization.
The presence of a
conflict of interest is independent of
occurrence of impropriety. Therefore,
conflict of interest can be discovered
and voluntarily defused before any
corruption occurs. A widely used
definition is: "A conflict of
interest is a set of circumstances
that creates a risk that professional judgement or actions
regarding a primary interest will be unduly influenced by a
secondary interest." Primary interest refers to the principal
goals of the profession or activity, such as the protection of
clients, the health of patients, the integrity of research,
duties of public office. Secondary interest includes not
only financial gain but also such motives as the desire for professional advancement and the wish
to do favours for family and friends, but conflict of interest rules usually focus on financial
relationships because they are relatively more objective, fungible, and quantifiable. The
secondary interests are not treated as wrong in themselves, but become objectionable when they
are believed to have greater weight than the primary interests. The conflict in a conflict of
interest exists whether or not a particular individual is actually influenced by the secondary
interest. It exists if the circumstances are reasonably believed (on the basis of past experience
and objective evidence) to create a risk that decisions may be unduly influenced by secondary
The following are the most common forms of conflicts of interests:
Self-dealing, in which an official who controls an organization causes it to enter into a
transaction with the official, or with another organization that benefits the official only.
The official is on both sides of the "deal."
Outside employment, in which the interests of one job conflict with another.
Nepotism, in which a spouse, child, or other close relative is employed (or applies for
employment) by an individual, or where goods or services are purchased from a relative
or from a firm controlled by a relative. To avoid nepotism in hiring, many employment
applications ask if the applicant is related to a current employee of the company. This
allows recusal if the employed relative has a role in the hiring process. If this is the case,
the relative could then recuse from any hiring decisions.
Gifts from friends who also do business with the person receiving the gifts or from
individuals or corporations who do business with the organization in which the gift
recipient is employed. Such gifts may include non-tangible things of value such as
transportation and lodging.
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Pump and dump, in which a stock broker who owns a security artificially inflates the
price by "upgrading" it or spreading rumors, sells the security and adds short position,
then "downgrades" the security or spreads negative rumors to push the price down.
Other improper acts that are sometimes classified as conflicts of interests are probably better
classified elsewhere. Accepting bribes can be classified as corruption. Use of government or
corporate property or assets for personal use is fraud. Nor should unauthorized distribution of
confidential information, in itself, be considered a conflict of interest. For these improper acts,
there is no inherent conflict of roles (see above).
COI is sometimes termed competition of interest rather than "conflict", emphasizing a
connotation of natural competition between valid interests rather than violent conflict with its
connotation of victimhood and unfair aggression. Nevertheless, denotatively, there is too much
overlap between the terms to make any objective differentiation.
Self-policing of any group is also a conflict of interest. If any organization, such as a corporation
or government bureaucracy, is asked to eliminate unethical behavior within their own group, it
may be in their interest in the short run to eliminate the appearance of unethical behavior, rather
than the behavior itself, by keeping any ethical breaches hidden, instead of exposing and
correcting them. An exception occurs when the ethical breach is already known by the public. In
that case, it could be in the group's interest to end the ethical problem to which the public has
knowledge, but keep remaining breaches hidden.
Regulating conflict of interest in government is one of the aims of political ethics. Public
officials are expected to put service to the public and their constituents ahead of their personal
interests. Conflict of interest rules are intended to prevent officials from making decisions in
circumstances that could reasonably be perceived as violating this duty of office. Rules in the
executive branch tend to be stricter and easier to enforce than in the legislative branch. Two
problems make legislative ethics of conflicts difficult and distinctive. First, as James Madison
wrote, legislators should share a "communion of interests" with their constituents. Legislators
cannot adequately represent the interests of constituents without also representing some of their
own. As Senator Robert S. Kerr once said, "I represent the farmers of Oklahoma, although I have
large farm interests. I represent the oil business in Oklahoma...and I am in the oil business...They
don't want to send a man here who has no community of interest with them, because he wouldn't
be worth a nickel to them." The problem is to distinguish special interests from the general
interests of all constituents. Second, the "political interests" of legislatures include campaign
contributions which they need to get elected, and which are generally not illegal and not the
same as a bribe. But under many circumstances they can have the same effect. The problem here
is how to keep the secondary interest in raising campaign funds from overwhelming what should
be their primary interest—fulfilling the duties of office.
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Politics in the United States is dominated in many ways by political campaign contributions
Candidates are often not considered "credible" unless they have a campaign budget far beyond
what could reasonably be raised from citizens of ordinary means. The impact of this money can
be found in many places, most notably in studies of how campaign contributions affect
legislative behavior. For example, the price of sugar in the United States has been roughly
double the international price for over half a century. In the 1980s, this added $3 billion to the
annual budget of U.S. consumers, according to Stern, who provided the following summary of
one part of how this happens:
Contributions from the sugar lobby,
Percent voting in 1985 against gradually reducing
> $5,000 100%
This $3 billion translates into $41 per household per year. This is in essence a tax collected by a
nongovernmental agency: It is a cost imposed on consumers by governmental decisions, but
never considered in any of the standard data on tax collections.
Stern notes that sugar interests contributed $2.6 million to political campaigns, representing well
over $1,000 return for each $1 contributed to political campaigns. This, however, does not
include the cost of lobbying. Lessig cites six different studies that consider the cost of lobbying
with campaign contributions on a variety of issues considered in Washington, D.C. These studies
produced estimates of the anticipated return on each $1 invested in lobbying and political
campaigns that ranged from $6 to $220. Lessig notes that clients who pay tens of millions of
dollars to lobbyists typically receive billions.
Lessig insists that this does not mean that any legislator has sold his or her vote. One of several
possible explanations Lessig gives for this phenomenon is that the money helped elect candidates
more supportive of the issues pushed by the big money spent on lobbying and political
campaigns. He notes that if any money perverts democracy, it is the large contributions beyond
the budgets of citizens of ordinary means; small contributions from common citizens have long
been considered supporting of democracy.
When such large sums become virtually essential to a politician's future, it generates a
substantive conflict of interest contributing to a fairly well documented distortion on the nation's
priorities and policies.
Beyond this, governmental officials, whether elected or not, often leave public service to work
for companies affected by legislation they helped enact or companies they used to regulate or
companies affected by legislation they helped enact. This practice is called the "revolving door".
Former legislators and regulators are accused of (a) using inside information for their new
employers or (b) compromising laws and regulations in hopes of securing lucrative employment
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in the private sector. This possibility creates a conflict of interest for all public officials whose
future may depend on the Revolving door.
Mitigating Conflicts of Interest
Commonly, politicians and high-ranking government officials are required to disclose financial
information—assets such as stock, debts such as loans, and/or corporate positions held, typically
annually. To protect privacy (to some extent), financial figures are often disclosed in ranges such
as "$100,000 to $500,000" and "over $2,000,000". Certain professionals are required either by
rules related to their professional organization, or by statute, to disclose any actual or potential
conflicts of interest. In some instances, the failure to provide full disclosure is a crime.
However, there is limited evidence regarding the effect of conflict of interest disclosure despite
its widespread acceptance. A 2012 study published in the Journal of the American Medical
Association showed that routine disclosure of conflicts of interest by American medical school
educators to pre-clinical medical students were associated with an increased desire among
students for limitations in some industry relationships. However, there were no changes in the
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perceptions of students about the value of disclosure, the influence of industry relationships on
educational content, or the instruction by faculty with relevant conflicts of interest.
And, an increasing line of research suggests that disclosure can have "perverse effects" or, at
least, is not the panacea regulators often take it to be.
Recusal for Conflict
Those with a conflict of interest are expected to recuse themselves from (i.e., abstain from
decisions where such a conflict exists). The imperative for recusal varies depending upon the
circumstance and profession, either as common sense ethics, codified ethics, or by statute. For
example, if the governing board of a government agency is considering hiring a consulting firm
for some task, and one firm being considered has, as a partner, a close relative of one of the
board's members, then that board member should not vote on which firm is to be selected. In
fact, to minimize any conflict, the board member should not participate in any way in the
decision, including discussions.
Judges are supposed to recuse themselves from cases when personal conflicts of interest may
arise. For example, if a judge has participated in a case previously in some other judicial role
he/she is not allowed to try that case. Recusal is also expected when one of the lawyers in a case
might be a close personal friend, or when the outcome of the case might affect the judge directly,
such as whether a car maker is obliged to recall a model that a judge drives. This is required by
law under Continental civil law systems and by the Rome Statute, organic law of the
International Criminal Court.
Consider a situation where the owner of a majority of a public companies decides to buy out the
minority shareholders and take the corporation private. What is a fair price? Obviously it is
improper (and, typically, illegal) for the majority owner to simply state a price and then have the
(majority-controlled) board of directors approve that price. What is typically done is to hire an
independent firm (a third party), well-qualified to evaluate such matters, to calculate a "fair
price", which is then voted on by the minority shareholders.
Third-party evaluations may also be used as proof that transactions were, in fact, fair ("arm'slength").
For example, a corporation that leases an office building that is owned by the CEO
might get an independent evaluation showing what the market rate is for such leases in the
locale, to address the conflict of interest that exists between the fiduciary duty of the CEO (to the
stockholders, by getting the lowest rent possible) and the personal interest of that CEO (to
maximize the income that the CEO gets from owning that office building by getting the highest
Generally, conflicts of interests should be eliminated. Often, however, the specifics can be
controversial. Should therapists, such as psychiatrists, be allowed to have extra-professional
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elations with patients, or ex-patients? Should a faculty member be allowed to have an extraprofessional
relationship with a student, and should that depend on whether the student is in a
class of, or being advised by, the faculty member?
Codes of ethics help to minimize problems with conflicts of interests because they can spell out
the extent to which such conflicts should be avoided, and what the parties should do where such
conflicts are permitted by a code of ethics (disclosure, recusal, etc.). Thus, professionals cannot
claim that they were unaware that their improper behavior was unethical. As importantly, the
threat of disciplinary action (for example, a lawyer being disbarred) helps to minimize
unacceptable conflicts or improper acts when a conflict is unavoidable.
Since codes of ethics cannot cover all situations, some governments have established an office of
the ethics commissioner, who can be appointed by the legislature and report to the legislature.
Judicial disqualification, also referred to as recusal, refers to the act of abstaining from
participation in an official action such as a legal proceeding due to a conflict of interest of the
presiding court official or administrative officer. Applicable statutes or canons of ethics may
provide standards for recusal in a given proceeding or matter. Providing that the judge or
presiding officer must be free from disabling conflicts of interest makes the fairness of the
proceedings less likely to be questioned.
In the United States, the term "recusal" is used most often with respect to court proceedings. Two
sections of Title 28 of the United States Code (the Judicial Code) provide standards for judicial
disqualification or recusal. Section 455, captioned "Disqualification of justice, judge, or
magistrate judge," provides that a federal judge "shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned." The section also provides that a judge is
disqualified "where he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding"; when the judge has
previously served as a lawyer or witness concerning the same case or has expressed an opinion
concerning its outcome; or when the judge or a member of his or her immediate family has a
financial interest in the outcome of the proceeding.
28 U.S.C. Section 144, captioned "Bias or prejudice of judge," provides that under
circumstances, when a party to a case in a United States District Court files a "timely and
sufficient Motion that the judge before whom the matter is pending has a personal bias or
prejudice either against him or in favor of an adverse party," the case shall be transferred to
The General Rule is that, to warrant recusal, a judge's expression of an opinion about the merits
of a case, or his familiarity with the facts or the parties, must have originated in a source outside
the case itself. This is referred to in the United States as the "extra-judicial source rule" and was
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ecognized as a general presumption, although not an invariable one, in the 1994 U.S. Supreme
Court decision in Liteky v. United States.
At times justices or judges will recuse themselves sua sponte (on their own motion), recognizing
that facts leading to their disqualification are present. However, where such facts exist, a party to
the case may suggest recusal. Generally, each judge is the arbiter of a motion for the judge's
recusal, which is addressed to the judge's conscience and discretion. However, where lower
courts are concerned, an erroneous refusal to recuse in a clear case can be reviewed on appeal or,
under extreme circumstances, by a petition for a writ of prohibition.
In certain special situations, circumstances, that would otherwise call for recusal of a judge or
group of judges, may be disregarded, when otherwise no judge would be available to hear the
case. For example, if a case concerns a salary increase payable to a judge, that judge would
ordinarily be disqualified from hearing the case. However, if the pay increase is applicable to all
of the judges in the court system, the judge will keep the case, because the grounds for recusal
would be equally applicable to any other judge. The principle that a judge will not be
disqualified when the effect would be that no judge could hear the case is sometimes referred to
as the "rule of necessity".
Supreme Court Cases
In the Supreme Court of the United States, the Justices typically recuse themselves from
participating in cases in which they have financial interests. For example, Justice Sandra Day
O'Connor generally did not participate in cases involving telecommunications firms because she
owned stock in these firms, and Justice Stephen Breyer has disqualified himself in some cases
involving insurance companies because of his participation in a Lloyd's of London syndicate.
Justices also have declined to participate in cases in which close relatives, such as their children,
are lawyers for one of the parties. On occasion, recusal occurs under more unusual
circumstances; for example, in two cases, Chief Justice William H. Rehnquist stepped down
from the bench when cases were argued by Arizona attorney James Brosnahan, who had testified
against Rehnquist at his confirmation hearing in 1986. Whatever the reason for recusal, the
United States Reports will record that the named justice "took no part in the consideration or
decision of this case."
Historically, standards for recusal in the Supreme Court and lower courts were less rigorous than
they have become in more recent years. In the 1803 case of Marbury v. Madison, Chief Justice
John Marshall participated in the decision and authored the opinion of the Court even though
Marshall's actions as Secretary of State two years prior could be seen as the subject of the
proceeding. On the other hand, Marshall did recuse himself in both the 1813 and 1816 hearings
of Martin v. Hunter's Lessee, despite its equally significant constitutional implications, as he and
his brother had contracted with Martin to buy the land in dispute. Moreover, during the 19th
century, the U.S. federal court system was structured so that an appeal from a judge's decision
was often heard by an appellate panel containing the same judge, who was expected to sit in
impartial review of his own earlier ruling. This situation is no longer permissible, and 28 U.S.C.
Sec. 47 provides that "No judge shall hear or determine an appeal from the decision of a case or
issue tried by him."
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One of notable dispute over recusal in U.S. Supreme Court history took place in 1946, when
Justice Hugo Black participated in deciding the Jewell Ridge Coal case, although a former law
partner of Black argued for the prevailing side. The losing party in the 5–4 decision sought
reargument on the ground that Black should have been disqualified; Black declined to recuse
himself and the decision stood, but Justice Robert H. Jackson wrote a short opinion suggesting
that the decision that Black should sit in the case was Black's alone and the Court did not endorse
it. The dispute aggravated infighting between Black and Jackson, and it has been suggested that
this was one of the reasons that, when Chief Justice Harlan Fiske Stone died, President Harry S.
Truman appointed Fred M. Vinson to succeed Stone rather than promote a sitting Associate
Justice to Chief Justice.
In 1973, then-Associate Justice Rehnquist wrote a lengthy in-chambers opinion declining to
recuse himself in Laird v. Tatum, a case challenging the validity of certain arrests, even though
Rehnquist had previously served as a White House lawyer and opined that the arrest program
was valid. In 2004, Justice Antonin Scalia wrote an opinion declining to recuse himself in a case
to which Vice President Dick Cheney was a party in his official capacity, despite the contention
of several environmental groups that Scalia's participation created an appearance of impropriety
because Scalia had recently participated in a widely publicized hunting trip with the Vice
President. The same year, however, Scalia recused himself without explanation in Elk Grove
Unified School District v. Newdow, a First Amendment case challenging inclusion of the words
"under God" in the Pledge of Allegiance, after giving a public speech in which Scalia stated his
view that Newdow's claims were meritless.
Other Federal Cases
In 1974, Black federal Judge Leon Higginbotham issued his decision in Comm. of Pa. v. Local
542, Int'l Union of Operating Engineers, explaining why he as an African American judge with a
history of active involvement in the civil rights struggle was not obligated to recuse himself from
presiding over litigation concerning claims of racial discrimination. He held, in an opinion that
was followed by later judges, including a series of Black judges who faced recusal requests, that
if a judge could be forced to step aside from a case merely because of their membership in a
group that was the subject of discrimination, minorities would constantly be removed from cases.
Jewish federal Judge Paul Borman relied on the Higginbotham opinion in part in his 2014
decision not to recuse himself from the trial of Palestinian-American Rasmea Odeh. Similarly, in
1994, Jewish then-federal-Judge Michael Mukasey refused to recuse himself in a case
concerning the 1993 World Trade Center bombing, warning that the demand for his recusal
would ―disqualify not only an obscure district judge such as the author of this opinion, but also
Justices Brandeis and Frankfurter … each having been both a Jew and a Zionist.‖
Administrative Agency and Other Matters
Outside the judicial system, the concept of recusal is also applied in administrative agencies.
When a member of a multi-member administrative body is recused, the remaining members
typically determine the outcome. When the sole occupant of an official position is recused, the
matter may be delegated to the official's deputy or to a temporarily designated official; for
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example, when the Solicitor General of the United States is recused from a case, the Deputy
Solicitor General will handle the matter in his or her place.
Concepts analogous to recusal also exist in the legislative branch. The rules of the United States
Senate and House of Representatives provide that a Member should not vote on a measure as to
which he or she has a personal financial interest. In such cases, the Senator or Representative
may record a vote of "present" rather than "yea" or "nay".
International Standards of Recusal
Laws or court rules provide the recusal of judges. Although the details vary, the following are
nearly universal grounds for recusal.
The judge is related to a party, attorney, or spouse of either party (usually) within three
degrees of kinship.
The judge is a party.
The judge is a material witness unless pleading purporting to make the Judge a party is
false (determined by presiding judge, but see Substitution (law)).
The judge has previously acted in the case in question as an attorney for a party, or
participated in some other capacity.
The judge prepared any legal instrument (such as a contract or will) whose validity or
construction is at issue.
Appellate judge previously handled case as a trial judge.
The judge has personal or financial interest in the outcome. This particular ground varies
by jurisdiction. Some require recusal if there is any interest at all in the outcome, while
others only require recusal if there is interest beyond a certain value.
The judge determines he or she cannot act impartially.
Consequences for Non-Recusal
A judge who has grounds to recuse himself is expected to do so. If a judge does not know that
grounds exist to recuse themselves (but does) the error is harmless. If a judge does not recuse
themselves when they should have known to do so, they may be subject to sanctions, which vary
by jurisdiction. Depending on the jurisdiction, if an appellate court finds a judgment to have been
made when the judge in question should have been recused, it may set aside the judgment and
return the case for retrial.
Waiver & Substitution
The recusal rule may be avoided or ignored if all parties and the judge agree, although in practice
this rarely occurs. If recusal is avoided in this manner, a full and complete record of the facts that
qualify as grounds, above, must be made for the appellate court.
If a judge fails to recuse themselves sua sponte and a party believes the judge has a bias the party
may motion for substitution. In some jurisdictions litigants may have the right to substitute a
judge, even if no bias is demonstrated.
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International Case Law Standard for Recusal – Landmark Case
R v Sussex Justices, Ex parte McCarthy ( 1 KB 256,  All ER Rep 233) is a leading
English case on the impartiality and recusal of judges. It is famous for its precedence in
establishing the principle that the mere appearance of bias is sufficient to overturn a judicial
decision. It also brought into common parlance the oft-quoted aphorism "Not only must Justice
be done; it must also be seen to be done."
In 1923 McCarthy, a motorcyclist, was involved in a road accident which resulted in his
prosecution before a magistrates court for dangerous driving. Unknown to the defendant and his
solicitor, the clerk to the justices was a member of the firm of solicitors acting in a civil claim
against the defendant arising out of the accident that had given rise to the prosecution. The clerk
retired with the justices, who returned to convict the defendant.
On learning of the clerk's provenance, the defendant applied to have the conviction quashed. The
justices swore affidavits stating that they had reached their decision to convict the defendant
without consulting their clerk.
The appeal was essentially one of judicial review and was heard at the King's Bench division by
Lord Chief Justice Hewart. In a landmark and far-reaching judgement, Lord Hewart CJ said:
is said, and, no doubt, truly, that when that gentleman retired in the
usual way with the justices, taking with him the notes of the evidence
in case the justices might desire to consult him, the justices came to a
conclusion without consulting him, and that he scrupulously abstained
from referring to the case in any way. But while that is so, a long line
of cases shows that it is not merely of some importance but is of
fundamental importance that justice should not only be done, but
should manifestly and undoubtedly be seen to be done.
The question therefore is not whether in this case the deputy clerk
made any observation or offered any criticism which he might not
properly have made or offered; the question is whether he was so
related to the case in its civil aspect as to be unfit to act as clerk to the
justices in the criminal matter. The answer to that question depends
not upon what actually was done but upon what might appear to be
Nothing is to be done which creates even a suspicion that there has
been an improper interference with the course of justice. Speaking for
myself, I accept the statements contained in the justices' affidavit, but
they show very clearly that the deputy clerk was connected with the
case in a capacity which made it right that he should scrupulously
abstain from referring to the matter in any way, although he retired
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with the justices; in other words, his one position was such that he
could not, if he had been required to do so, discharge the duties which
his other position involved. His twofold position was a manifest
In those circumstances I am satisfied that this conviction must be
quashed, unless it can be shown that the applicant or his solicitor was
aware of the point that might be taken, refrained from taking it, and
took his chance of an acquittal on the facts, and then, on a conviction
being recorded, decided to take the point. On the facts I am satisfied
that there has been no waiver of the irregularity, and, that being so, the
rule must be made absolute and the conviction quashed.
The ruling is derived from the principle of natural justice and has been followed throughout the
world in countries that use the English legal system. It has been applied in many diverse
situations, including immigration cases, professional disciplinary cases, domestic tribunals such
as members' clubs, and perhaps most famously in the Pinochet case, where the House of Lords
overturned its own decision on the grounds of Lord Hoffman's conflict of interest.
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Judicial Activism is judicial rulings suspected of being based on personal or political
considerations rather than on existing law. It is sometimes used as an antonym of judicial
restraint. The definition of judicial activism, and which specific decisions are activist, is a
controversial political issue, particularly in the United States. The question of judicial activism is
closely related to constitutional interpretation, statutory construction, and separation of powers.
Arthur Schlesinger Jr. introduced the term "Judicial Activism" in a January 1947
Fortune magazine article titled "The Supreme Court: 1947".
The phrase has been controversial since its beginning. An
article by Craig Green, "An Intellectual History of Judicial
Activism," is critical of Schlesinger's use of the term;
"Schlesinger's original introduction of judicial
activism was doubly blurred: not only did he
fail to explain what counts as activism, he
also declined to say whether activism
is good or bad."
Even before this phrase was first
used, the general concept already
existed. For example, Thomas Jefferson referred to the "despotic behaviour" of Federalist federal
judges, in particular, John Marshall.
Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making
whereby judges allow their personal views about public policy, among other factors, to guide
Political science professor Bradley Canon has posited six dimensions along which judge courts
may be perceived as activist: majoritarianism, interpretive stability, interpretive fidelity,
substance/democratic process, specificity of policy, and availability of an alternate policymaker.
David Strauss has argued that judicial activism can be narrowly defined as one or more of three
possible actions: overturning laws as unconstitutional, overturning judicial precedent, and ruling
against a preferred interpretation of the constitution.
Others have been less confident of the term's meaning, finding it instead to be little more than a
rhetorical shorthand. Kermit Roosevelt III has argued that "in practice 'activist' turns out to be
little more than a rhetorically charged shorthand for decisions the speaker disagrees with";
likewise, the solicitor general under George W. Bush, Theodore Olson, said in an interview on
Fox News Sunday, in regards to a case for same-sex marriage he had successfully litigated, that
"most people use the term 'judicial activism' to explain decisions that they don't like." Supreme
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Court Justice Anthony Kennedy has said that, "An activist court is a court that makes a decision
you don't like."
The Great Judicial Activism Debate
Detractors of judicial activism charge that it usurps the power of the elected branches of
government or appointed agencies, damaging the rule of law and democracy. Defenders of
judicial activism say that in many cases it is a legitimate form of judicial review, and that the
interpretation of the law must change with changing times.
A third view is that so-called "objective" interpretation of the law does not exist. According to
law professor Brian Z. Tamanaha, "Throughout the so-called formalist age, it turns out, many
prominent judges and jurists acknowledged that there were gaps and uncertainties in the law and
that judges must sometimes make choices."
Some proponents of a stronger judiciary argue that the judiciary helps provide checks and
balances and should grant itself an expanded role to counterbalance the effects of transient
majoritarianism, i.e., there should be an increase in the powers of a branch of government which
is not directly subject to the electorate, so that the majority cannot dominate or oppress any
particular minority through its elective powers. Other scholars have proposed that judicial
activism is most appropriate when it restrains the tendency of democratic majorities to act out of
passion and prejudice rather than after reasoned deliberation.
Moreover, they argue that the judiciary strikes down both elected and unelected official action, in
some instances acts of legislative bodies reflecting the view the transient majority may have had
at the moment of passage and not necessarily the view the same legislative body may have at the
time the legislation is struck down. Also, the judges that are appointed are usually appointed by
previously elected executive officials so that their philosophy should reflect that of those who
nominated them, that an independent judiciary is a great asset to civil society since special
interests are unable to dictate their version of constitutional interpretation with threat of stopping
Landmark Cases in Judicial Activism
The following are [cases] cited as examples of judicial activism:
1. R v Sussex Justices, ex p McCarthy
Brown v. Board of Education – 1954 Supreme Court ruling ordering the desegregation of
Roe v. Wade – 1973 Supreme Court ruling decriminalizing abortion.
Bush v. Gore – The United States Supreme Court case between the major-party
candidates in the 2000 presidential election, George W. Bush and Al Gore. The judges
voted 5-4 to halt the recount of ballots in Florida and, as a result, George Bush was
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Citizens United v. Federal Election Commission – 2010 Supreme Court decision
declaring Congressionally enacted limitations on corporate political spending and
transparency as unconstitutional restrictions on free speech.
Hollingsworth v. Perry – 2013 decision by federal judge Vaughn R. Walker overturning
California's constitutional amendment to ban same-sex marriage.
Contempt of Court and disqualification of Pakistani Prime Minister Yusuf Raza Gilani by
the Supreme Court of Pakistan chief justice Iftikhar Muhammad Chaudhry.
2. R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet
R v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte (No 2) was an
English legal case which involved the unprecedented setting aside of a House of Lords judgment
based upon the possibility of bias. Lord Hoffmann's failure to declare links to Amnesty
International meant that a previous House of Lords judgment on the immunity of former Chilean
dictator General Augusto Pinochet had to be set aside.
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The Role of Judicial Activism
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IOSR Journal Of Humanities And Social Science (IOSR-JHSS)
Volume 19, Issue 2, Ver. IV (Feb. 2014), PP 20-25
e-ISSN: 2279-0837, p-ISSN: 2279-0845.
“The Role of Judicial Activism in the Implementation and
Promotion of Constitutional Laws and Influence of Judicial
Vipin Kumar (NET, M.Phil.),
Research Scholar, Shri Venkateshwara University, Rajabpur, Gajraula (UP) Address- near K.G.K (P G)
College Dev Vihar Colony, Line Par, Moradabad, Mob- 945806777, 8194005705
Abstract: Judicial activism is today one of the most misused constitutional terms. India practices
constitutionaldemocracy with emphasis on constitutionalism. This comes with it to high rates of political
activities with misuse of political powers granted in the Constitution by the political actors. Naturally, the court
is called upon to wear its active posture and interpret theConstitution as it affects the political class. However,
each decision of the courts interpreting the constitution against the political class is met with cries of “judicial
activism” from one side of the political spectrum or the other. The other cry seems to be that the courts are
encroaching into the domain of the political class thereby violating the doctrine of political questions which is
essentially a function of separation of powers. The paper sees these terms as being misused and makes an
analytical exposition of the term and judicial intervention into political questions in India. It contends that
courts should ensure the limits of governmental action under the principles of a constitutional democracy, even
in the delicate field of internal affairs of governmental institutions. For this purpose, various constitutional
provisions and judicial decisions are examined.
Key Words: Judicial activism, constitutional democracy , separation of powers, constitutional provisions ,
Today judicial activism has touched almost each and every aspect of life ranges from human rights
issues to maintenance of public roads! Judicial activism means the power of the Supreme Court and the high
court but not the sub-ordinate courts to declare the laws as unconstitutional and void. If it infringes or if the law
is inconsistent with one or more provisions of the constitution. To the extent of such inconsistency while
declaring a law as constitutional and void the courts do not suggest any alternative measures.
The term judicial activism despites its popularity to amongst legal experts, judges, scholars and
politicians has not until recently been given an appropriate definition of what the term should mean so that it
will not be subject to abuse. 1 The effect of this has been a misconception about what the term is all about. 2
This therefore creates series of definitions about the concept. Although definitions are usually products of
individual idiosyncrasies and it‟s often influenced by the individual perception or world view, a
combination of various definitions gives a description of the concept.
the Judicial Activism as innovative, dynamic and law making role of the Court with a forward looking
attitude discarding reliance on old cases, and also mechanical, conservative and static views. It is the creative
thought process through which the court displays vigour, enter- prise, initiative pulsating with the urge of
creating new and refined principles of law. It means when the Court plays a positive role the court is said to be
exhibiting the „Judicial Activism‟. There are different opinions about the origin of doctrine of Judicial Activism.
Some scholars like Justice M.N. Roy believe that it is born in 1804 when Chief Justice Marshall, the greatest
judge of English-speaking world, decided Marbury V Madison. But P.P. Vijayan differs with saying that
Marbury V Madison is a case of Judicial Review and not of a Judicial Activism. However he opines that the
judicial activism has a hoary past in Dr. Bonham‟s case in which Justice Coke derived doctrine of natural justice
in the year 1610. In this context Dr. Suresh Mane observed that “As a result English Courts by its interpretation
role extended the necessary protection; but truly, the movement of judicial activism got momentum on the soil
ofAmerica under the shadow of first ever written Constitution.” 1 The role of the judiciary in a modern legal
system is immense social significance.... Law is in a constant process of flux and development, and though
much of this development is due to the enactment of the legislature, the judges and the courts have an essential
role to play in developing the law and adopting it to the needs of the Society. 3
Paul Mahoney in offering his own definition of the concept submits that judicial activism exists where
the judges modified the law from what was previously stated to be the existing law which often leads to
substituting their own decisions from that of the elected representatives of the people. 4 This definition would
consider invalid actions or decisions of the judges given for the purpose of seeking the justice in a particular
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“The Role Of Judicial Activism In The Implementation And Promotion Of Constitutional Laws And
case or to interpret the law insuch a way as to conform to social realities thereby not permitting the correction of
mistakes in the previous jurisprudence of law. 5
Famous Author SubhashKashyap says, “What has come to be called hyper activism of the judiciary
draws its strength, Relevance and legitimacy from the inactivity, incompetence, disregard of law and
constitution, criminal negligence, corruption, greed for power and money, utter indiscipline and lack of
character and integrity among the leaders, ministers and administrators. As a result of this a vacuum was created
in which the governmental machinery seemed to be totally helpless with the corruption in legislative and
executive fields. The vacuum was filled in by the judiciary”.
A contrary view has also been offered that the judicial activism becomes the most valuable
instrument when the legislative machinery comes to a halt in a case. 6 Thus, where legislative machinery could
not apply to a given situation, judicial activism appears to be the most valuable instrument. In other words,
judges should not be scared of adjudicating a particular case because the law has not been enacted by the
legislature to cover the situation. This therefore justifies the application of judicial creativity in the matter.
Judicial Activism in India: The significant feature of Indian Constitution is partial separation of powers. -The
doctrine of separation of powers was propounded by the French Jurist, Montesquieu. It is partly adopted tit India
since the executive powers are vested in the president, Legislative powers tit the Parliament and the judicial
powers in the Supreme Court and subordinate courts. The role of separation of powers in India is simple. The
three organs of the Government viz. the Executive, Legislature and the Judiciary are not independently
independent but inter-dependently independent. (The executive encroaches upon judicial power, while
appointing the judges of Supreme Court and High Courts. Similarly the Judiciary, by its review power examines
the law passed by file legislature parliament and the legislature also, intervenes in respect of impeachment of the
As stated earlier, the Judicial Activism tit India can he witnessed with reference to the review power of
the Supreme Court and High Court under Art. 32 and 226 of the Constitution particularly in public interest
litigation cases. The Supreme Court played crucial role in formulating several principles in public interest
litigation cases. For instance, the principle of "absolute liability" was propounded in Oleum Gas Leak case.
Public Trust Doctrine in Kamalnath Case (1998 I SCC .388) etc.
Further, the Supreme Court, gave variety of guidelines in various cases of public interest litigation. eg:
Ratlam Municipality Case, Oleum Gas Leak Case, Ganga Pollution Case etc.
In India the concept originated after a public interest litigation was filed before the supreme court
when the then Chief justice P N Bhagwati took an unknown case directly from the public who did not had any
involvement in the case but it was just for the public welfare and also was related to public in large. Justice
P N Bhagwati has said that “One basic and fundamental question that confronts every democracy, run by a
rule of law is, what is the role or function of a judge. Is it the function of a judge merely to declare law as it
exists-or to make law? And this question is very important, for on it depends the scope of judicial activism. The
anglo-saxon tradition persists in the assertion that a judge does not make law; he merely interprets. Law is
existing and eminent; the judge merely finds it. He merely reflects what the legislature has said. This is the
photographic theory of the judicial function”. It is for the judge to give meaning to what the legislature has said
and it is this process of interpretation which constitutes the most creative and thrilling function of a judge. In the
initial years of 1950-67, the Supreme Court adopted the attitude of judicial restraint in which the court gave a
strict and literal interpretation of the constitution.Judicial review in India was provided for expressly in the
Constitution. Article 13, clause (1) says that all laws in force in the territory of India immediately before the
commencement of the Constitution, in so far as they are inconsistent with the provisions containing the
fundamental rights, shall, to the extent of such inconsistency, be void. Clause (2) of that article further says that
the State shall not make any law that takes away or abridges any of the fundamental rights and any law made in
contravention of the above mandate shall, to the extent of the contravention, be void. The Constitution also
divides the legislative power between the Centre and the states and forbids either of them to encroach upon the
power given to the other. Who is to decide whether a legislature or an executive has acted in excess of its
powers or in contravention of any of the restrictions imposed by the Constitution on its power? Obviously, such
function was assigned to the courts. The Constitution was criticized by some members of the Constituent
Assembly for being a potential lawyers‟ paradise. Dr. B.R. Ambedkar defended the provisions of judicial
review as being absolutely necessary and rejected the above criticism. According to him, the provisions for
judicial review and particularly for the writ jurisdiction that gave quick relief against the abridgement of
fundamental rights constituted the heart of the Constitution, the very soul of it. The nature and scope of judicial
review was first examined by the Supreme Court in A.K. Gopalan case where it accepted the principle of
judicial subordination to legislative wisdom. But on the whole it limited itself and exercised judicial restraint.
The second phase unfolded with the Golaknath case which resulted in on open conflict between the judiciary
and legislature. The parliament asserted its supremacy and the Supreme Court asserted its power of Judicial
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“The Role Of Judicial Activism In The Implementation And Promotion Of Constitutional Laws And
Review, which resulted in a series of constitutional amendments in which the parliament tried to limit the power
of Judicial review. In the Emergency of 1975-77, the judiciary was made subservient to the legislature and
executive. In Golaknath case, the Supreme Court gave an unprecedented judgment, which was clearly a case of
Judicial Activism. The reason of imposing emergency was the decision of Allahabad High Court setting aside
the election of Prime Minister Indira Gandhi to the LokSabha. The 42nd constitutional Amendment Act was
also passed which put new limitations on the judiciary. After the emergency the 44th constitutional Act was
passed which restored the judiciary‟s position as it had existed before the emergency. In Minerva mills case the
Supreme Court declared judicial review as part of the basic structure. Since 1980‟s we saw the emergence of
Judicial Activism as a powerful tool in Indian Polity. Thus now we find that the Supreme Court is no longer
exercising judicial restraint. But in fact, it has taken up Judicial Activism so much. A court giving new meaning
to a provision so as to suit the changing social or economic conditions or expanding the horizons of the right of
the individual is said to be an activist court. Thus has given birth to Judicial Activism. In the words of Justice J.
S. Varma “The role of the Judiciary in interpreting existing laws according to the needs of the times and filling
in the gaps appears to be the true meaning of Judicial Activism. 7
Present scenario of Judicial activism or Judicial overactivism:-
Of late the Indian judiciary appears to have become overactive, and is often accused of judicial
overreach. This accusation was usually leveled by politicians or others outside the judicial system, until in 2008
it was leveled by Justice A.K. Mathur and the writer (as Judges of the Supreme Court) in Divisional Manager,
Aravalli Golf Course v. Chander Haas.The Indian Supreme Court surely came a long way since Anwar Ali
Sarkar Vs. State of West BengalAIR 1952 SC 75 and A.K. Gopalan Vs. State of Madras where the judiciary
refused to indulge in making judicial policy and instead exercised judicial restraint keeping in mind the Doctrine
of Separation of Powers. However, the pendulum later swung to the opposite direction. Thus, in Maneka
Gandhi vs. Union of India AIR 1978 SC 593 the 7 Judge Bench of the Indian Supreme Court, while overruling
the 5 Judge Bench decision in A.K. Gopalan‟scase introduced the due process clause in the Indian Constitution
by a judicial pronouncement. In S. P. Gupta Vs. Union of India ,AIR 1982 SC 149 it was held that:“He [the
judge] has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of dynamic
interpretation, invest it with a meaning which will harmonize the law with the prevailing concepts and values
and make it an effective, instrument for delivery of justice.”
Similarly, in the case of Supreme Court Advocates on Record Vs. Union of India,1993 4 SCC 44it was held
that:“It belongs to the Judiciary to ascertain the meaning of the constitutional provisions and the laws enacted by
This was the advent of an over active judiciary which assumed upon itself the need to adjudicate even
where it was not perceived to be warranted. Although Article 50 (8) of the Indian Constitution expressly provides
for Separation of Powers between the different organs of the State, but time and again, the Indian Supreme
Court has taken on itself the task of filling in the gaps created by the Legislature and the Executive to do
While doing so, the judiciary has been often criticized for overstepping its limits. In the case of
VineetNarainvs. Union of India, 1998 Cri. L. J. 1208 the Supreme Court had invented a new writ called
“continuing mandamus” where it wanted to monitor the investigating agencies which were guilty of inaction to
proceed against persons holding high offices in the executive who had committed offences. Furthermore, the
Court created by its judicial order a body called the Central Vigilance Commission, which was not contemplated
by the statute (the Delhi Special Police Establishment Act, 1946), for supervising the functioning of a statutory
body, the Central Bureau of Investigation. The Court also laid down a number of guidelines for the
appointments of chiefs of investigating agencies like Central Bureau of Investigation, Central Vigilance
Commission and the Enforcement Directorate; apart from the Chiefs of the State Police. These guidelines, apart
from being in relation to appointment, were also with regard to their status, transfer and tenure, etc. The
question arises whether this was legitimate exercise of judicial power.In the case of Indian Council for Enviro-
Legal Action Vs. Union of India, (1996) 5 SCC 281the Court passed various orders especially directed
towards the States requiring them to submit management plans to control pollution to both, the Central
Government as well as the Court. Here, the Court held that it was only discharging its judicial functions in
ensuring that it remedies the errors of the executive.
In the case of M. C. Mehta vs. Union of India, (2001) 3 SCC 763where a writ was filed with regard
to the vehicular pollution in Delhi, the Supreme Court had passed directions for the phasing out of diesel buses
and for the conversion to CNG. When these directions were not complied with due to shortage in supply of
CNG, the Court held that orders and directions of the Court could not be nullified or modified by State or
Central governments. This was a case where, despite several directions being given by the Supreme Court, the
government did not act speedily in responding to the Order.
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“The Role Of Judicial Activism In The Implementation And Promotion Of Constitutional Laws And
The Court has prescribed norms regarding the running of the prisons and mental intuitions , 9 instructed the
Government to implement labor laws at construction sites, 10 recognised admissions in medical colleges
throughout India laying down examination schedules, 11 prescribing hawking zones in metropolitan cities, 12 laid
down the guidelines for the retail outlets for essential commodities such as LPG, 13 resolving disputes between
public undertakings of Central Government, 14 directed the authorities like C.B.I to conduct and complete
investigation expeditiously in cases of national importance, 15 directed the noxious factories to restart on the
technical reports on safety measures, 16 prescribed the poverty limits for the low income urban housing 17 or set
up an expert panel headed by a retired Supreme Court to study the vehicular pollution level 18 etc. In these
decisions the court did legislate, but in the process was criticized for having infringed upon the executive
With due respect to these and other decisions it has to be said that many judges often forget that the
judiciary cannot solve all problems in the country. Suppose the Court passes an order that from tomorrow
poverty in India, or unemployment, or malnutrition etc. are abolished. Will these orders mean anything? Can
they really be implemented? India is a poor country with limited financial resources. Moreover, many such
orders e.g. for interlinking rivers vide In re Networking of Rivers (2012) 4 S.C.C. 51 raise great technical and
administrative problems, and are really in the domain of the legislature or executive.
The most recent case on judicial activism was the case of ArunaRamchandraShanbaugVs. Union of
India and Others. JT 2011 (3) SC 300.ArunaShanbaug, a nurse in 1973, while working at a Hospital at
Mumbai, was sexually assaulted and has been in a permanent vegetative state since the assault. In 2011, after
she had been in this status for 37 years, the Supreme Court of India heard the petition to the plea for euthanasia
filed by a social activist claiming to be Aruna‟s friend. The Court turned down the petition, but in its landmark
judgment (authored by the writer) it allowed passive euthanasia i.e. withdrawal of life support to a person in
permanently vegetative state, subject to approval by the High Court.
II. Trends in Judicial Restraint:-
Rising judicial activism was hindering governance in the country and impacting growth in Asia's third
largest economy, finance minister P Chidambaram said.
"Nowhere in the world would we see ideal balance between legislature and judiciary. But in India, we have seen
intensifying judicial activism, which had impacted the balance of governance," Chidambaram said at The
Economic Times Awards for Corporate Excellence.
"The balance in India has swung away from the executive and the parliament," he said. "The judiciary has taken
an upper hand. Unless the executive has a final say, we cannot have sustained high growth rate. Countries like
China, Brazil and Mexico, with a stronger executive authority, have exhibited better growth trajectory," he
"Judicial institutions cannot take over governance. We must rediscover the balance between our
institutions and we have to reassert the balance between reforms, development and institutions," Chidambaram
Sounding a note of caution on judicial activism, The President of India Mr. Pranab Mukherjee said judicial
pronouncements must respect the boundaries that separate the legislature, executive and judiciary. Making his
first visit outside the national capital after assuming the office of President on July 25, Mukherjee also said that
everything must be done to protect the independence of judiciary from any form of encroachment. Addressing
the valedictory function of the 150th anniversary celebrations of the Madras High Court, he urged judiciary to
keep reinventing itself through a process of introspection and self-correction at the same time. In his address,
Mukherjee touched upon various issues that dominate legal discourse including judicial accountability and the
appointment of judges. The President referred to judicial activism and said the judges through innovation and
activism have contributed enormously to expanding the frontiers of justice and providing access to the poorest
of the poor. 19
The Supreme Court in an order has said that the judiciary must refrain from encroaching on legislative
and executive domain otherwise it will boomerang in the form of political class stepping to clip their wings. A
bench comprising Justice AK Mathur and Justice MarkandeyKatju said, "If the judiciary does not exercise
restraint and over-stretches its limit there is bound to be reaction from politicians and others. The politicians will
then step in and curtail the powers or even independence of the judiciary. The judiciary should, therefore,
confine itself to its proper sphere, realizing that in a democracy many matters and controversies are best
resolved in a non-judicial setting." The court said that justification often given for judicial encroachment into the
domain of the executive or legislature is that the other two organs are not doing their jobs properly. Even
assuming this is so, the same allegation can then be made against the judiciary too because there are cases
pending in courts for half-a-century, bench said. If they are not discharging their assigned duties, the remedy is
not judicial interference as it will violate delicate balance of power enshrined in the constitution, remarked the
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“The Role Of Judicial Activism In The Implementation And Promotion Of Constitutional Laws And
There are many examples where judiciary had encroached upon the turf which was unwarranted. The
Jagdambika Pal caseof 1998 involving UP legislative assembly and the Jharkhand assembly case of 2005 are
the two glaring examples of deviations from the clearly provided constitutional scheme of separation of powers,
There is broad (though not absolute) separation of powers in the Indian Constitution vide Divisional Manager,
Aravali Golf Course vs. Chander Haas, 2008. The Constitution of India did not provide for the judiciary to
be a super legislature or a substitute for the failure of the other two organs. Thus, the need arises for the
judiciary to lay down its own limitations.
Some people say that the judiciary can enter into the domain of the executive or legislature because these organs
are not functioning properly. But then it can also be said that the judiciary, too, is not functioning properly, there
is great delay in deciding cases, corruption in a section of the judiciary, etc. Should then the legislature or
executive take over the judiciary‟s function?
One of the examples of judicial restraint is the case of State of Rajasthan Vs. Union of India,AIR
1977 SC 1361, in which the court rejected the petition on the ground that it involved a political question and
therefore the court would not go into the matter. In S.R. Bommai Vs. Union of India,(1994) 3 SCC 1, the
judges said that there are certain situations where the political element dominates and no judicial review is
possible. The exercise of power under Art.356 was a political question and therefore the judiciary should not
interfere. Ahmadi J. said that it was difficult to evolve judicially manageable norms to scrutinize the political
decisions and if the courts do it then it would be entering the political thicket and questioning the political
wisdom, which the court must avoid. 21
In Almitra H. Patel Vs. Union of India, (2000) 2 SCC 679, where the issue was whether directions should be
issued to the Municipal Corporation regarding how to make Delhi clean, the Court held that it was not for the
Supreme Court to direct them as to how to carry out their most basic functions and resolve their difficulties, and
that the Court could only direct the authorities to carry out their duties in accordance with what has been
assigned to them by law. Also, in Union of India Vs. Kishan K. Sharma, (2004) 5 SCC 518,when the High
Court issued a Mandamus to the Government to pay a particular scale to its officers, the Supreme Court laying
down the boundaries of judicial activism in general held that such Mandamus would not be permissible as
fixation of salaries was an administrative decision. Similarly, creation of a post is an administrative or
legislative functions, and cannot be done by the court vide Divisional Manager, Aravali Golf Course (supra)
However, the governance cannot be replaced by the judicial institutions. There is a need to discover a
balance between judicial and executive institutions. We need to reassert the balance between reforms,
development and institutions. Judicial activism should not be used to lead to the Constitutional principles of
separation of power getting eroded. Our Hon‟ble Judges should not cross their limits in the name of judicial
activism and not to try to take over the functions of other organs of administration. Judicial pronouncements
must respect the boundaries that separate the Legislature, Executive and Judiciary. TheJudicial Activism has
touched almost every aspect of life in the present times. Be it the case of bonded labor, illegal detentions, torture
and maltreatment of women, the implementation of various provisions of the constitution, environmental
problems, health, sports etc. the courts took cognizance of each case and laid down various judgments to protect
the basic human rights of each and every member of society. However, the politicians and some constitutional
experts criticize judicial activism and on the other hand the lawyers and public has welcomed it with warm
hands. It is important to note that judicial Activism has so many merits but it has certain demerits. Here it is
important to note that we cannot lead the government on judicial basis only. Frequent confrontation between the
Legislature, Executive and the judiciary will also damage our well established democratic system of
governance. The members of every institutionsworn to uphold the constitution, which alone is supreme. Both
sides will maintain and respect the line of demarcation of power under the constitution and will not allow a
conflict to develop between them.
By evolving the doctrine of Basic Structure of the Constitution, the Hon‟ble Supreme Court of India
has limited the power of Parliament to amend the constitution. The court‟s increased activism has been good and
contributed a lot for India‟s democracy. The expensive, technical justice now becomes inexpensive and nontechnical
through the growth of Public Interest Litigations. The important question today is not whether the
Supreme Court could activate its judicial role, but to what extent the concepts of Judicial Activism and
creativity are exercised. A balance between the powers of Judiciary, Legislature and executive is necessary to
carry the nation on the true path of democracy.
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“The Role Of Judicial Activism In The Implementation And Promotion Of Constitutional Laws And
. See for instance some of the work that are on judicial activism without really defining the term. Chad M. Old father, “Defining
Judicial Inactivism: Models of Adjudication and the Duty to Decide” (2005) 94, Geo. L.J. 121, 122
. Keenan D. Kmiec, “The Origin and Current Meanings of "Judicial Activism," (2004) 92, Cal. L. Rev., 1441, 1442;See also
Bradley C. Canon, “A Framework for the Analysis of Judicial Activism” in Stephen C. Halpem& Charles M. Lamb eds., Supreme
Court Activism And Restraint 1982, 385, 386 (describing prevalent activism debates as "little more than a babel of loosely
. Cardozo Benjamin N, The Nature of the Judicial Process, Universal Law Publishing Co.Pvt.Ltd., Delhi, (2004)
. Paul Mahoney, “Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Same
Coin” (1990) 11, Hum. Rts. L.J. 57, 58.
. DragoljubPopovic, “Prevailing Judicial Activism over Self Restraint in the Jurisprudence of the European Court of Human Rights”
( 2009) vol. 42, Creighton Law Review, 361 at 363.
. Thijmen Koopmans, “The Roots of Judicial Activism in Protecting Human Rights: The European Dimension, Studies In
Honor Of Gérard J. Wiarda 326 (F Matscher& H. Petzold Eds., 1988).
. JUDICIAL ACTIVISM IN INDIA- An Overview (By Arjun.M, Administrative Assistant, Centre for Public Policy Research)
. Article 50: The State shall take steps to separate the judiciary from the executive in the public services of the State.
. SheelaBarsevs. State of Maharashtra, (1983) 2 SCC 96
. Labors on Sala Hydro Electricity Project Vs. State of J & K, (1984) 3 SCC 538
. Pradeep Kumar Jain Vs. State of .P., AIR 1984 SC 1420
. Bombay Hawkers Union Vs. B.M.C., (1985) 3 SCC 528
. Center for PIL Vs. Union of India, 1995 Sppl. (3) SCC 382
. ONGC Vs. Collector of Central Excise, 1995 Sppl. (3) SCC 541 (This decision has since been reversed)
. Supra footnote 51.
. M. C. Mehta v. Union of India, (1986) 2 SCC 176
. Shantisar Builders Vs. L. Narayan, (1990) 1 SCC 520
. M. C. Mehta v. Union of India, (1991) 2 SCC 353
. Pranab Mukherjee's note of caution on judicial activism PTI Sep 8, 2012, 07.33PM IST
. SC asks courts to curb judicial activism Sanjay K Singh, TNN Dec 11, 2007, 12.49am IST
. “Judicial Activism v. Judicial Self-Restraint” athttp://legalsutra.org/933/judicial-activism-v-judicial-self-restraint/ as last on 10
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Selective Judicial Activism
Page 110 of 115
Selective Judicial Activism
JUSTICE BRENNAN: LIBERAL CHAMPION. By Seth Stern & Stephen Wermiel.
Houghton Mifflin Harcourt. 2010. Pp. 688, $35.00.
Geoffrey R. Stone *
When the term “judicial activist” was first coined by Arthur
Schlesinger, Jr. in 1947, it “did not have a derogatory connotation.” 1 By the
time William J. Brennan, Jr. had completed his thirty-four years on the
Supreme Court, the phrase had become a pejorative, implying the
irresponsible exercise of judicial authority.
Critics on and off the Court have vilified Brennan and his liberal
colleagues for their activism. In 1966, the political scientist Robert
McCloskey accused Brennan and his fellow “judicial activists” of creating
“Constitutional rules out of whole cloth.” 2 Judge Learned Hand complained
that the “judicial activists” on the Supreme Court were acting like “a bevy of
Platonic guardians.” 3 Anthony Lewis reported that critics had vehemently
attacked “judicial activists” like Brennan for “taking too much joy” in their
own power and “trying too boldly to fix up the wrongs of our system.” 4 And
Justice Felix Frankfurter castigated the “judicial activists” for making
decisions on the basis of “‘their prejudices and their respective pasts and selfconscious
desires to join Thomas Paine and T. Jefferson in the Valhalla of
“liberty.”’” 5 To this day, no Supreme Court nominee—not Anthony
Kennedy, not Ruth Bader Ginsburg, not John Roberts, not Elena Kagan—has
dared to describe him or herself as a “judicial activist.” Such a selfcharacterization
would certainly be the kiss of death for any nominee.
* Edward H. Levi Distinguished Service Professor of Law, The University of Chicago. I
would like to thank the University of Chicago Law School’s Leonard Sorkin Law Faculty Fund for
its generous support of my work and, most especially, Justice William J. Brennan, Jr., for giving me
the extraordinary opportunity to serve as one of his law clerks during the Supreme Court’s 1973
1. SETH STERN & STEPHEN WERMIEL, JUSTICE BRENNAN: LIBERAL CHAMPION 232 (2010).
2. Id. at 232–33 (quoting Robert G. McCloskey, Reflections on the Warren Court, 51 VA. L.
REV. 1229, 1259 (1965)).
3. Id. at 231 (quoting LEARNED HAND, THE BILL OF RIGHTS: THE OLIVER WENDELL HOLMES
LECTURES 1958, at 73 (1958)).
4. Id. at 231 (quoting Anthony Lewis, Supreme Court Moves Again to Exert Its Powerful
Influence, N.Y. TIMES, June 20, 1964, at E3).
5. Id. at 102 (quoting Melvin I. Urofsky, Conflict Among the Brethren: Felix Frankfurter,
William O. Douglas and the Clash of Personalities and Philosophies on the United States Supreme
Court, 1988 DUKE L.J. 71, 105 (1988)).
1424 Texas Law Review [Vol. 89:1423
Is the pejorative “judicial activist” warranted? To answer that question,
we must begin with the Court’s economic substantive due process decisions
in cases like Lochner v. New York, 6 half a century before William Brennan
joined the Court. Lochner and its progeny, which held unconstitutional a
broad range of progressive legislation regulating such matters as maximum
hours and minimum wages, represented a highly controversial form of
conservative judicial activism. Over time, Lochner, the bête noire of
progressives of that era, came to be “one of the most condemned cases in
United States history.” 7
Critics of the Lochner-era jurisprudence took away two quite distinct
lessons. Some, like Frankfurter, concluded that judicial activism was
presumptively illegitimate and unwarranted. The only principled stance for a
responsible Justice was one of judicial restraint. As Seth Stern and Stephen
Wermiel aptly observe, “Frankfurter believed firmly that judges should act
with restraint and largely defer to the elected branches.” 8 Indeed, this was
“something he had preached as a professor at a time when a conservative
Supreme Court was overturning the progressive economic regulations . . .
that he favored.” 9 It was for this reason that Frankfurter was so condemning
of his “judicial activist” colleagues on the Court.
Other critics of Lochner, like Hugo Black, William O. Douglas, and
William Brennan, took away a very different lesson. In their view, Lochner
was wrong not because judicial activism is wrong, but because Lochner was
not an appropriate case for judicial activism. It was this view that Chief
Justice Harlan Fiske Stone set forth in 1938 in his famous footnote 4 in
United States v. Carolene Products Co. 10 While burying the doctrine of
economic substantive due process, Stone at the same time suggested that
“[t]here may be narrower scope for operation of the presumption of
constitutionality when legislation . . . restricts those political processes which
can ordinarily be expected to bring about repeal of undesirable legislation,”
or when it discriminates “against discrete and insular minorities” in
circumstances in which it is reasonable to infer that prejudice, intolerance, or
indifference might seriously have curtailed “the operation of those political
processes ordinarily to be relied upon to protect minorities . . . .” 11
It was this conception of selective judicial activism that shaped
Brennan’s jurisprudence. It is important to emphasize that, Frankfurter to the
contrary notwithstanding, this view of the judicial role is not necessarily the
product of individual Justices’ personal “prejudices” and experiences.
6. 198 U.S. 45 (1905).
7. BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION 23 (1980).
8. STERN & WERMIEL, supra note 1, at 101.
10. 304 U.S. 144 (1938).
11. Id. at 152–53 n.4.
2011] Selective Judicial Activism 1425
Rather, it is deeply rooted in the original understanding of the purpose of
judicial review in our system of constitutional governance.
The Framers of our Constitution wrestled with the problem of how to
cabin the dangers of an overbearing or intolerant majority. For example,
those who initially opposed a bill of rights argued that such a list of rights
would serve little, if any, practical purpose, for in a self-governing society
the majority could simply disregard whatever rights might be “guaranteed” in
the Constitution. In the face of strenuous objections from the Anti-
Federalists during the ratification debates, however, it became necessary to
reconsider the issue.
On December 20, 1787, Thomas Jefferson wrote James Madison from
Paris that, after reviewing the proposed Constitution, he regretted “the
omission of a bill of rights.” 12 In response, Madison expressed doubt that a
bill of rights would “provide any check on the passions and interests of the
popular majorities.” 13 He maintained that “experience proves the inefficacy
of a bill of rights on those occasions when its controul is most needed.
Repeated violations of these parchment barriers have been committed by
overbearing majorities in every State” that already had a bill of rights. 14 In
such circumstances, he asked, “What use . . . can a bill of rights serve in
popular Governments?” 15
Jefferson replied, “Your thoughts on the subject of the Declaration of
rights” fail to address one consideration “which has great weight with me, the
legal check which it puts into the hands of the judiciary. This is a body,
which if rendered independent . . . merits great confidence for their learning
& integrity.” 16 This exchange apparently carried some weight with Madison.
On June 8, 1789, Madison proposed a bill of rights to the House of
Representatives. At the outset, he reminded his colleagues that “the greatest
danger” to liberty was found “in the body of the people, operating by the
majority against the minority.” 17 Echoing Jefferson’s letter, he stated the
position for judicial review, contending that if these rights are:
incorporated into the constitution, independent tribunals of justice will
consider themselves . . . the guardians of those rights; they will be an
impenetrable bulwark against every assumption of power in the
legislative or executive; they will be naturally led to resist every
12. Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), reprinted in JACK N.
RAKOVE, DECLARING RIGHTS: A BRIEF HISTORY WITH DOCUMENTS 154, 156 (1998).
13. RAKOVE, supra note 12, at 159.
14. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), reprinted in RAKOVE,
supra note 12, at 160, 161.
15. Id. at 162.
16. Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), reprinted in RAKOVE,
supra note 12, at 165, 165.
17. James Madison, Speech to the House of Representatives (June 8, 1789), reprinted in
RAKOVE, supra note 12 at 170, 177.
1426 Texas Law Review [Vol. 89:1423
encroachment upon rights expressly stipulated for in the constitution
by the declaration of rights. 18
This reliance on judges, whose lifetime tenure would hopefully insulate
them from the need to curry favor with the governing majority, was central to
the Framers’ understanding. Alexander Hamilton, for example, strongly
endorsed judicial review as obvious and uncontroversial. The “independence
of the judges,” he reasoned, is “requisite to guard the Constitution and the
rights of individuals from the effects of those ill humours, which . . .
sometimes disseminate among the people themselves” Judges, he insisted,
have a duty to resist invasions of constitutional rights even if they are
“instigated by the major voice of the community.” 19
It was this “originalist” conception of judicial review that informed
Justice Brennan’s selective judicial activism. As a rule, he gave a great deal
of deference to the elected branches of government—except when he felt
such deference would effectively abdicate the responsibility the Framers had
imposed upon the Judiciary to serve as an essential check against the inherent
dangers of democratic majoritarianism. He therefore invoked activist
judicial review primarily in two situations: (1) when the governing majority
systematically disregarded the interests of a historically underrepresented
group (such as blacks, ethnic minorities, political dissidents, religious
dissenters, women, and persons accused of crime), and (2) when there was a
risk that a governing majority was using its authority to stifle its critics,
entrench the status quo, and/or perpetuate its own political power.
Because Brennan played so central a role in crafting many of the key
decisions of the Warren Court, it may be useful to note just a few of those
decisions to illustrate my point. Consider, for example, Brown v. Board of
Education, 20 which prohibited racial segregation in public schools; Loving v.
Virginia, 21 which invalidated laws forbidding interracial marriage; Engel v.
Vitale, 22 which prohibited school prayer; Goldberg v. Kelly, 23 which
guaranteed a hearing before an individual’s welfare benefits could be
terminated; Reynolds v. Sims, 24 which guaranteed “one person, one vote”;
Miranda v. Arizona, 25 which gave effect to the prohibition of compelled selfincrimination;
Gideon v. Wainwright, 26 which guaranteed all persons accused
of crime the right to effective assistance of counsel; New York Times v.
18. Id. at 179.
19. THE FEDERALIST NO. 78 (Alexander Hamilton).
20. 347 U.S. 483 (1954).
21. 388 U.S. 1 (1967).
22. 370 U.S. 421 (1962).
23. 397 U.S. 254 (1970).
24. 377 U.S. 533 (1964).
25. 384 U.S. 436 (1966).
26. 372 U.S. 335 (1963).
2011] Selective Judicial Activism 1427
Sullivan, 27 which limited the ability of public officials to use libel actions to
silence their critics; and Elfbrandt v. Russell, 28 which protected the First
Amendment rights of members of the Communist Party. Each of these
decisions clearly reflected the central purpose of judicial review—to guard
against the greatest dangers of majoritarian abuse. 29
By definition, antimajoritarian decisions generally do not sit well with
the majority. It is therefore hardly surprising that this jurisprudence excited
biting criticism, especially in the political arena, where candidates curry
favor with that very same majority. By the late 1960s, Richard Nixon was
able to make the Court’s “judicial activism” a significant issue in national
politics. During his nomination acceptance speech in 1968, for example, he
insisted that the Court had “gone too far in weakening the peace forces as
against the criminal forces in this country and we must act to restore that
balance.” 30 Nixon decried the activism of the Warren Court and pledged to
appoint “strict constructionists” rather than “judicial activists” to the Court.
In the discourse of the time, a strict constructionist was a judge committed to
judicial restraint. In a few short years, Nixon appointed Warren Burger,
Harry Blackmun, Lewis Powell, and William Rehnquist to the Court.
Although these Justices varied over time in their adherence to “strict
constructionism,” their presence quickly transformed the Court, leaving
Justice Brennan in the minority for the rest of his tenure.
The change in the Court’s role since 1968 has been dramatic. In the
twenty-five years between 1968 and 1993, shortly after Brennan left the
Court, Republican presidents made twelve consecutive appointments to the
Supreme Court. According to research by Lee Epstein, William Landes, and
Richard Posner, in 1968 the average voting record of the five most liberal
Justices (Marshall, Douglas, Brennan, Fortas, and Warren) in civil liberties
cases was .185. (This is on a scale in which .000 is the most liberal and
1.000 is the most conservative.) The swing Justice was Earl Warren, whose
voting record was .263. 31 By 1993, after twelve consecutive Republican
27. 376 U.S. 254 (1964).
28. 384 U.S. 11 (1966).
29. Many of these decisions reflected, indirectly if not directly, the “gravitational pull” of the
quest for racial justice and equality. See Burt Neuborne, The Gravitational Pull of Race on the
Warren Court, 2010 SUP. CT. REV. (forthcoming 2011) (manuscript at 9–27) (on file with Texas
Law Review) (arguing that race exercised a strong influence on the Warren Court’s federalism,
separation of powers, and First Amendment jurisprudence); HARRY KALVEN, JR., THE NEGRO AND
THE FIRST AMENDMENT 4 (1965) (arguing that recent constitutional decisions relating to race and
free speech challenge the law’s prior conceptions of racial equality).
30. Richard M. Nixon, Presidential Nomination Acceptance Speech (Aug. 8, 1968) (transcript
available at http://www.presidency.ucsb.edu/ws/index.php?pid=25968).
31. See LEE EPSTEIN, WILLIAM M. LANDES AND RICHARD A. POSNER, ARE JUDGES REALISTS?
AN EMPIRICAL STUDY tbl.3-2 (forthcoming HARV. L. REV. 2011); see also Geoffrey R. Stone,
Understanding Supreme Court Confirmations, 2010 SUP. CT. REV. (forthcoming 2011) (manuscript
at 21) (on file with Texas Law Review).
1428 Texas Law Review [Vol. 89:1423
appointments, the average voting record of the five most conservative
Justices (Thomas, Rehnquist, Scalia, O’Connor, and Kennedy) was .798, and
the swing Justice, Anthony Kennedy, had a voting record of .695. 32 Thus,
the Court majority was roughly as conservative in 1993 as it had been liberal
in 1968. Even more striking, by 1993 the “liberals” on the Court were
almost as conservative as the “conservatives” on the Court in 1968. 33
But what does “conservative” mean in the modern era? In Nixon’s
time, the term meant a Justice committed to judicial restraint. But beginning
with the Reagan era, this began to change. Justices like Antonin Scalia,
Clarence Thomas, John Roberts, and Samuel Alito are anything but
restrained. Rather, like Justice Brennan, they employ a form of selective
judicial activism. On the one hand, it seems clear that these Justices would
have joined few, if any, of the Warren Court decisions I mentioned earlier.
On the other hand, though, despite all the conservative rhetoric about “strict
constructionism,” “originalism,” “judicial restraint,” and “call[ing] balls and
strikes,” 34 these conservative Justices have been just as activist as their liberal
predecessors, but in a wholly different set of cases.
In a series of unmistakably activist decisions, the conservative Justices
have held unconstitutional affirmative action programs, 35 gun control
regulations, 36 limitations on the authority of corporations to spend at will in
the political process, 37 restrictions on commercial advertising, 38 laws
prohibiting groups like the Boy Scouts from discriminating on the basis of
sexual orientation, 39 federal legislation regulating guns, age discrimination,
32. EPSTEIN ET AL., supra note 31.
33. The four conservatives in 1968 (Harlan, White, Stewart, and Black) had an average voting
record of .521, whereas the four liberals in 1993 (Stevens, Souter, Blackmun, and White) had an
average voting record of .436. See EPSTEIN, LANDES & POSNER, supra note 31, at tbl.3-2.
34. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the
United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of
John G. Roberts, Jr., Supreme Court C.J. Nominee).
35. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 747–78 (2007)
(holding unconstitutional an affirmative action program that took race into account when
determining school placement).
36. See McDonald v. City of Chi., 130 S. Ct. 3020, 3050 (2010) (holding that the Second
Amendment is applicable to the states and remanding the case for further proceedings); D.C. v.
Heller, 554 U.S. 570, 595, 635 (2008) (holding that D.C.’s ban on handgun possession in the home
violated the individual right to bear arms conferred by the Second Amendment).
37. See Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 913 (2010) (holding that
“[t]he First Amendment does not permit Congress to make . . . categorical distinctions based on the
corporate identity of the speaker and the content of the political speech”).
38. See Thompson v. W. States Med. Ctr., 535 U.S. 357, 376–77 (2002) (“If the Government’s
failure to justify its decision to regulate speech were not enough to convince us that the FDAMA’s
advertising provisions were unconstitutional, the amount of beneficial speech prohibited by the
FDAMA would be. . . . [W]e affirm the . . . judgment that the speech-related provisions . . . are
39. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 661 (2000) (overturning application of a state
public accommodations law that would have prohibited discrimination based on sexual orientation).
2011] Selective Judicial Activism 1429
the environment, and violence against women, 40 and policies of the State of
Florida relating to the outcome of the 2000 presidential election. 41
Nothing about this jurisprudence smacks of “judicial restraint.” To the
contrary, it has about it the distinctive air of Platonic guardianship. The
challenge is to figure out what theory of judicial review or constitutional law
drives this particular form of activism. Although one can readily discern the
specific conception of judicial review that undergirds Justice Brennan’s use
of judicial activism, which is clearly rooted in the concerns of Jefferson,
Madison, and Hamilton, no similar principle of judicial review or
constitutional methodology explains the jurisprudence of contemporary
conservative judicial activists. To understand Brennan’s theory of activist
judicial review, all one needs to do is to look at the results and then ask,
“Why these cases and not others?” If one attempts the same inquiry of the
decisions of the current conservative Justices, however, no principled
explanation emerges for their version of selective activism. Rather, to return
to Justice Frankfurter’s ill-tempered observation, the selective activism of
Justices like Scalia, Thomas, Roberts, and Alito seems to be born out of
“‘their prejudices and their respective pasts and self-conscious desires to join
[Ronald Reagan and George W. Bush] in the Valhalla of “liberty.”’” 42 The
point, in other words, is that judicial activism itself is neither inherently good
nor inherently bad. It is a legitimate and essential method of constitutional
interpretation when used in appropriate circumstances.
I sometimes wonder what constitutional law might look like today if
Justices with the same vision as Justice Brennan had remained a majority on
the Supreme Court over the past forty years. It is not so difficult to imagine
such a state of affairs. Had Hubert Humphrey defeated Richard Nixon,
Jimmy Carter defeated Ronald Reagan, or Al Gore defeated George W.
Bush, the path of constitutional law might have been very different. What is
more difficult to imagine is how constitutional law might have evolved in
that counterfactual universe. It has been so long since there has been a
liberal majority on the Court that it is difficult even to conceive what a liberal
jurisprudence might look like today.
40. See Printz v. United States, 521 U.S. 898, 933 (1997) (holding that “[t]he mandatory
obligation imposed on CLEOs to perform background checks on prospective handgun purchasers
plainly runs afoul of [the law]”); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000) (holding
“that the [Age Discrimination in Employment Act] is not a valid exercise of Congress’ power”);
Solid Waste Agency v. United States Army Corps of Eng’rs, 531 U.S. 159, 174 (2001) (holding a
federal law claiming jurisdiction over ponds and mudflats was unconstitutional); United States v.
Morrison, 529 U.S. 598, 627 (2000) (holding that a federal law dealing with violence against
women was not constitutional).
41. See Bush v. Gore, 531 U.S. 98, 103 (2000) (invalidating Florida’s “use of standardless
manual recounts” as violative of the “Equal Protection and Due Process Clauses”).
42. STERN & WERMIEL, supra note 1, at 102 (quoting Melvin I. Urofsky, Conflict Among the
Brethren: Felix Frankfurter, William O. Douglas and the Clash of Personalities and Philosophies
on the United States Supreme Court, 1988 DUKE L.J. 71, 105).
1430 Texas Law Review [Vol. 89:1423
Here are some possibilities: the counterfactual Court might have held,
not that affirmative action is unconstitutional, but that it is sometimes
constitutionally required; it might have held, not that cigarette companies
have a constitutional right to shill their products to children, 43 but that
children have a constitutional right to an adequate and equal education; 44 it
might have held not that silence constitutes waiver of the right to remain
silent, 45 but that individuals accused of a crime have a constitutional right to
DNA testing; it might have held, not that the government can constitutionally
ban partial birth abortions, 46 but that it cannot constitutionally ban stem-cell
research in order to enforce the faith-based beliefs of the religious right; it
might have held, not that corporations have a constitutional right to spend
millions to buy the elected representatives of their choice, 47 but that public
officials cannot constitutionally use partisan gerrymandering to ensure their
perpetuation in power; 48 it might have held, not that the Boy Scouts have a
constitutional right to discriminate against gays and lesbians, 49 but that gays
and lesbians have a constitutional right to marry.
Constitutional interpretation is not a mechanical, value-free enterprise.
It requires judges to exercise judgment. It calls upon them to consider text,
history, precedent, values, and ever-changing social and cultural conditions.
It requires restraint, wisdom, empathy, 50 and intelligence. Perhaps above all,
it requires a recognition of the Judiciary’s unique strengths and weaknesses
and a deep and accurate understanding of our nation’s most fundamental
43. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 566 (2001) (holding that regulations on
tobacco advertising violate the First Amendment because they fail Central Hudson’s four-part
44. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 54–55 (1973) (holding that the
Texas system of financing public education rationally furthers a legitimate state purpose or interest
and therefore satisfies the Equal Protection Clause).
45. See Berghuis v. Thompkins, 130 S. Ct. 2250, 2264 (2010) (holding that unless a suspect
explicitly invoked his Miranda rights he waived them by making voluntary statements and that
police did not have to obtain a waiver of the suspect’s Miranda rights before interrogating him).
46. See Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (holding that the Partial-Birth Abortion
Ban Act of 2003 was not unconstitutional on its face).
47. See Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 913 (2010) (holding that
“[t]he First Amendment does not permit Congress to make . . . categorical distinctions based on the
corporate identity of the speaker and the content of the political speech”).
48. See Vieth v. Jubelirer, 541 U.S. 267, 281 (2004) (holding that “political gerrymandering
claims are nonjusticiable” because there are no “judicially discernable and manageable standards for
adjudicating political gerrymandering claims”).
49. See Boy Scouts of America v. Dale, 530 U.S. 640, 644 (2000) (holding that applying New
Jersey’s public accommodations law to require the Boy Scouts to readmit an avowed homosexual
and gay rights activist violated the Boy Scouts’ First Amendment right of expressive association).
50. Richard Cotton, one of Justice Brennan’s law clerks in the Court’s 1972 term, observed that
Brennan “had the ability to see a case through the eyes of the people involved.” STERN &
WERMIEL, supra note 1, at 206.
2011] Selective Judicial Activism 1431
As Justice Brennan himself observed, the Supreme “‘Court is not a
council of Platonic guardians given the function of deciding our most
difficult and emotional questions according to the Justices’ own notions of
what is just or wise or politic.’” 51 Rather, “‘our government structure assigns
to the people’s elected representatives the function of making policy for
handling the social and economic problems of state and nation’” and “‘the
impropriety of a judiciary with life tenure writing its own social and
economic creed into the Constitution is therefore clear.’” 52 At the same time,
though, Brennan insisted that “‘[j]ust as an individual may be untrue to
himself, so may society be untrue to itself.’” 53 The Court’s responsibility in
interpreting and applying the Constitution, he rightly insisted, is to “‘keep the
community true to its own fundamental principles.’” 54
51. Id. at 233 (quoting Justice William James Brennan, The U.S. Constitution, Speech at
Maxwell Air Force Base (Sept. 9, 1963), reprinted in 2 AIR WAR C. SUPPLEMENT 3, 43).
52. Id. (quoting A Visit with Justice Brennan, LOOK, Dec. 18, 1962).
53. Id. at 234 (quoting Justice William James Brennan, Bouton Lecture at Princeton University
(Feb. 4, 1969)).
Proper Judicial Activism
Page 111 of 115
PROPER JUDICIAL ACTIVISM
Judicial review, and judicial activism in particular, have never
enjoyed a wealth of popular support in this country. Indeed, the practice
of judges overturning legislative enactments has been the subject of
several sharp critiques over the years, particularly in the area of
constitutional law. As President, Ronald Reagan described the kinds of
judges of which he disapproves as those who love "short-circuiting the
electoral process and disenfranchising the people through judicial
activism." 1 His one-time nominee to the Supreme Court, Robert Bork,
has commented that "[wle have known judicial activism of the right and
of the left; neither is legitimate." 2 Regardless of ideology, it has become a
staple of opponents of a particular judicial decision to accuse the court of
activism, which is synonymous with an affront. 3
Despite its negative connotation, judicial activism, in several forms,
has a long, if not storied, tradition in this country. Since Marbury v.
Madison, 4 striking down legislation passed at the federal and state levels
has been met with varying degrees of acceptance and criticism. It is the
premise of this paper that in constitutional law there is a correct kind of
judicial activism, toward which the Supreme Court should be focused. As
mandated by the Constitution, the proper form of judicial activism is
activism based upon preserving the structure of our constitutional
government. Professor Steven Calabresi comments, "There is nothing in
the U.S. Constitution that should absorb more completely the attention
of the U.S. Supreme Court" than the structures embedded in "[t]hat
great document." s This article aims to demonstrate that a faithful
rendering of the Constitution by the Supreme Court demands
* Law clerk to Chief Justice Roy S. Moore of the Alabama Supreme Court; J.D.,
Regent University School of Law.
1 Ronald Reagan, I PUB. PAPERS 1270, (Oct. 21, 1985).
2 Id. at 41, Jan. 14, 1988. In describing Bork and his "disciples," Professor Harry
Jaffa says they believe "that judicial activism is usurpation, denying to the political
processes of democracy their rightful role in governance." Harry V. Jaffa, Jaffa Replies to
His Critics 235 app. IV-A, at 292 (The Closing of the Conservative Mind) in ORIGINAL
INTENT AND THE FRAMERS OF THE CONSTITUTION (Harry V. Jaffa et al., 1994). In part, that
is exactly the sentiment this paper hopes to refute. Proper judicial activism flows from the
nature of our system, as will be shown, and as such is not usurpation.
3 See David L. Anderson, Note, When Restraint Requires Activism: Partisan
Gerrymandering and the Status Quo Ante, 42 STAN. L. REV. 1549, 1559 (1990).
4 5 U.S. (1 Cranch) 137 (1803).
5 Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In
Defense of United States v. Lopez, 94 MIcH. L. REV. 752, 770 (1995).
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REGENT UNIVERSITY LAW REVIEW
concentration on the structures of government as the most justified and
least dangerous way to practice judicial review.
To explain and substantiate this claim, it is necessary to divide this
paper into five parts. Part I defines the terms involved in order to help
the reader better understand what is and is not being argued. Part II
explains the vast importance of structure to our constitutional scheme as
it relates to the Founding and today. Part III spells out why judicial
review is a tool best employed on the structural front. Part IV examines
some criticisms of and alternatives to the approach espoused here, as
well as some responses to those various views. Finally, Part V reflects on
why this argument is important to our world today and to the
government in which we participate.
In general terms, the structures of the Constitution are not difficult
to discover or define. They include the separation of powers, checks and
balances, federalism, bicameralism, representation, an independent
judiciary, and judicial review. 6 Many of these structures are rarely, if
ever, questioned on propriety or efficacy grounds. "Elections are held
when they are supposed to be held, presidents and congresses come and
go, California and Wyoming send two representatives to the Senate,
[and] constitutional amendments are proposed and are almost always
defeated . . . ."7 Most of these structures have held a consistent definition
since the Founding; after all, little is left to the imagination when the
Constitution says that Congress shall consist of two houses or that a
senator has a six-year term of office. Two of these structures, however,
have displayed fluid tendencies over the years, causing many to question
their wisdom and even their very existence: the separation of powers and
federalism. 8 Ironically, the Founders considered these the most
important innovations placed in the Constitution, 9 and are the
structures on which this article will focus.1 0
6 Edwin Meese III, The Law of the Constitution, 61 TUL. L. REV. 979, 982 (1987).
7 Steven G. Calabresi, The Tradition of the Written Constitution: A Comment on
Professor Lessig's Theory of Translation, 65 FORDHAM L. REV. 1435, 1452 (1997).
8 The legitimacy of judicial review has also been questioned at length, given the
lack of any Constitutional text on the subject. However, there seems little doubt that,
whether the device was intended by the Framers or not (this paper will make a structural
argument that it was), it is not going away. As Professor Erwin Chemerinsky has pointed
out, "What we really should be talking about is what is the appropriate content of judicial
review, not whether the power exists or not." Erwin Chemerinsky, The Goldwater Institute
and the Federalist Society: Federalism and Judicial Mandates, 28 ARIz. ST. L.J. 17, 51
(1996). That is exactly what this paper is about-the appropriate content of judicial review.
9 WILLIAM EATON, WHO KILLED THE CONSTITUTION: THE JUDGES V. THE LAW 3
(1988): "The Founding Fathers understood thoroughly the corruptions of power and the
temptations of office. They feared most of all the tyranny of unchecked government power.
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PROPER JUDICIAL ACTIVISM
The concept of judicial activism requires some careful elucidation. It
falls under the rubric of what is commonly called judicial review."
Judicial review occurs, as Justice Marshall famously put it,
If a law be in opposition to the constitution; if both the law and the
constitution apply to a particular case, so that the court must either
decide that case conformably to the law, disregarding the constitution;
or conformably to the constitution, disregarding the law; the court
must determine which of these conflicting rules governs the case. 12
At the broadest level, judicial activism is any occasion where a court
intervenes and strikes down a piece of duly enacted legislation. This is
activism because it "impose Is] a judicial solution over an issue erstwhile
subject to political resolution." 13 The key to categorizing this broad
definition of activism is determining on what basis the legislation or
policy is struck down.
For instance, Professor Lino Graglia describes judicial activism as
"the practice by judges of disallowing policy choices by other
governmental officials or institutions that the Constitution does not
clearly prohibit." 1 4 Professor Graglia's version of activism is actually
improper judicial activism because it possesses no constitutional basis.
However, rarely, if ever, does a judge admit in an opinion that his
And so they fashioned a system of checks and balances to operate against the institutions
of government to which particular powers are granted." Id.
10 While I will elaborate extensively on these devices, it is important to note that
this paper does not attempt to present any definitive standards the Supreme Court ought
to use in the line-drawing problems raised in cases dealing with these issues. What is an
executive function as opposed to a legislative one, how much sovereignty do the states
retain, and how far does the power to regulate commerce extend are all intriguing
questions, but each are topics for full papers in themselves.
For some sample answers to these questions along the lines of the kind of
jurisprudence espoused in this paper, see Gary Lawson & Patricia Granger, The "Proper"
Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE
L.J. 267 (1993) (arguing for a structural interpretation of the Necessary and Proper Clause
which fundamentally restricts its scope); Thomas W. Merrill, Toward a Principled
Interpretation of the Commerce Clause, 22 HARV. J.L. & PUB. PoL'Y 31 (1998) (presenting a
clearer alternative to the understanding in Lopez of the Commerce Clause for the purpose
of enabling the Court to continue to police constitutional limitations on federal power);
Bernard Schwartz, Of Administrators and Philosopher-Kings: The Republic, the Laws, and
Delegations of Power, 72 Nw. U. L. REV. 443, 446 (1977) (reflecting on the practical nonexistence
of the current delegation doctrine).
My concern is drawing attention to the intrinsic nature and importance of these
structures, and consequently, the need for vigorous judicial policing in these areas.
I Of course, judicial activism also can occur when no constitutional question is at
issue. This paper, however, focuses on the use of activism in constitutional cases.
12 Marbury v. Madison, 5 U.S. 137, 178 (1803).
13 See Anderson, supra note 3, at 1570.
14 Lino A. Graglia, It's Not Constitutionalism, It's Judicial Activism, 19 HARV. J.L.
& PUB. POL'Y 293, 296 (1996).
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decision does not come from the Constitution. Thus, more precision is
necessary to differentiate proper from improper activism.
Improper activism finds its roots in the "belief that law is only
policy and that the judge should concentrate on building the good society
according to the judge's own vision."' 5 Judge William Wayne Justice, 16 a
self-proclaimed activist, is illustrative when he describes his own
thinking in a certain case: "Having found a constitutional violation by a
state institution, I acted upon the belief that simply declaring a practice
unconstitutional was not the limit of my duty as a judge. Judges are
more than social critics. The power of law and justice lies in actions, not
pronouncements." 17 Thus, this kind of activism employs "natural law or
basic notions of humanity, land] the necessary consultation of
extratextual source[s] for constitutional interpretation." 18 It is the kind
of activism Judge Skelly Wright called, when referring approvingly to
the Warren Court, "judging in the service of conscience." 19
In contrast, proper judicial activism stresses restraint, even when
striking down duly enacted legislation.
In this understanding of judicial review, the power to initiate policy
remains with the legislature or the executive. The Court merely
exercises a judicial veto in the event that an act of one of the other
branches of government goes beyond the power granted to that branch
by the Constitution, or is in conflict with some provision of the
While practicing this "restraint in activism," it is my contention that
the Supreme Court's focus ought to be on the structures of the
Constitution, especially the separation of powers and federalism. In
discussing the history of Supreme Court judicial review, Calabresi notes,
"The Supreme Court's main role until 1937 was to police the lines of
jurisdictional competence set out in the constitutional text ....
Federalism and separation of powers were thus core concerns of
American constitutional law .. ."21 They should be again.
As we shall see, proper judicial activism focuses on policing the
boundaries of power between the jurisdictional government entities
15 Archibald Cox, The Role of the Supreme Court: Judicial Activism or Self-
Restraint, 47 MD. L. REV. 118, 121-22 (1987).
16 United States District Court for the Eastern District of Texas.
17 William Wayne Justice, The Two Faces of Judicial Activism, 61 GEO. WASH. L.
REV. 1, 10 (1992).
18 Id. at 4.
19 J. Skelly Wright, The Judicial Right and the Rhetoric of Restraint: A Defense of
Judicial Activism in an Age of Conservative Judges, 14 HASTINGS CONST. L.Q. 487, 489
20 See EATON, supra note 9, at 17.
21 Steven G. Calabresi, Textualism and the Countermajoritarian Difficulty, 66 GEO.
WASH. L. REV. 1373, 1375 (1988) (footnotes omitted).
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within our system. Improper activism seeks to substantively correct
perceived injustices in the law through the use of any number of extraconstitutional
sources. The bottom line reason why the former is to be
preferred to the latter is that judicial review based upon the Constitution
demands nothing less. As Judge Frank Easterbrook 22 puts it, "The text of
the Constitution is about structure - about form. Application of the
Marbury principle means that rules . .. must be applied mechanically.
Anything else is faithless to the premise of constitutionalism.23
II. OUR CONSTITUTIONAL SCHEME AND THE IMPORTANCE OF STRUCTURE
A. The Principles of Structure
On a recent visit to the campus of Regent University, Associate
Justice of the Supreme Court Antonin Scalia made an observation to the
matriculating law students that where Constitutional Law is concerned,
"structure is destiny." 24 Stalwart proponents of the Bill of Rights would
disagree, but the point still maintains cogent force. To put Justice
Scalia's point a slightly different way, "[T]he text of our written
Constitution devotes only fifty-two words to the protection of individual
liberty from the depredations of state government in the Fourteenth
Amendment, while devoting several thousand words to the subject of
allocating and dividing power among government institutions." 25 That
point reminds us of something that many tend to forget: the whole of our
Constitution was written without a Bill of Rights originally in mind.
James Wilson said, "[Ilt would have been superfluous and absurd to
have stipulated with a fcederal body of our own creation, that we should
enjoy those privileges, of which we are not divested either by the
intention or the act [the Constitution], that has brought that body into
existence." 26 When we keep this fact in mind, the awesome importance of
22 United States Court of Appeals for the Seventh Circuit.
?3 Frank H. Easterbrook, Formalism, Functionalism, Ignorance, Judges, 22 HARV.
J.L. & PUB. POL'Y 13, 18 (1998).
24 Justice Antonin Scalia, Address at Regent University (Fall 1998).
25 Calabresi, supra note 21, at 1376-77.
26 JAMES WILSON, JAMES WILSON'S SPEECH AT A PUBLIC MEETING (October 6, 1787),
reprinted in 1 DEBATE ON THE CONSTITUTION, at 64 (Bernard Bailyn ed., 1993) [hereinafter
1 DEBATES]. Several other Founders made similar statements. See Answers to Mason's
"Objections", "Marcus" [James Iredell] I-V, NORFOLK AND PORTSMOUTH JOURNAL, Feb. 20,
1788, in 1 DEBATES, supra, at 364; Benjamin Rush, Benjamin Rush to David Ramsay,
COLUMBIAN HERALD (Charleston, S.C.), Apr. 19, 1788, reprinted in 2 DEBATE ON THE
CONSTITUTION, 417 (Bernard Bailyn ed., 1993) [hereinafter 2 DEBATES]; John Marshall on
the Fairness and Jurisdiction of the Federal Courts, in 2 DEBATES, supra, at 740.
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structure to our constitutional scheme, in the light of history, becomes
more readily apparent. 27
Chief Justice John Marshall reminds us that "[tihe security of a
people against the misconduct of their rulers, must lie in the frequent
recurrence to first principles, and the imposition of adequate
constitutional restrictions." 28 Following the jurist's sage advice, we start
with the first principles upon which the structure of this government
was designed to operate. The overarching practical principle guiding the
Founders was a fear of the concentration of political power in
government. "[I]t would be difficult to deny that in establishing their
complex structure, the Framers were virtually obsessed with a fear -
bordering on what some might uncharitably describe as paranoia - of the
concentration of political power." 29 This fear arose out of another first
principle, that man by his nature is corrupt. Madison stated it
It may be a reflection on human nature, that such devices should
be necessary to controul the abuses of government. But what is
government itself but the greatest of all reflections on human nature?
If men were angels, no government would be necessary. If angels were
to govern men, neither external nor internal controuls on government
would be necessary. In framing a government which is to be
administered by men over men, the great difficulty lies in this: You
must first enable the government to controul the governed; and in the
next place, oblige it to controul itself. 30
The "devices" he refers to are the structures of government. For, if it
is true that "[e]nlightened statesmen will not always be at the helm," 3 1
then "the defect must be supplied, by so contriving the interior structure
of the government, as that its several constituent parts may, by their
mutual relations, be the means of keeping each other in their proper
places." 32 In essence, the Founders devised the tools of separation of
powers, federalism, checks and balances, and judicial review to keep at
27 "So convinced were the Framers that liberty of the person inheres in structure
that at first they did not consider a Bill of Rights necessary." Clinton v. City of New York,
524 U.S. 417, 450 (1998) (Kennedy, J., concurring).
28 Fletcher v. Peck, 10 U.S. 87, 144 (1810).
29 Martin H. Redish & Elizabeth J. Cisar, "If Angels Were to Govern". The Need for
Pragmatic Formalism in Separation of Powers Theory, 41 DuKE L.J. 449, 451 (1991).
30 THE FEDERALIST No. 51 (James Madison), reprinted in 2 DEBATES, supra note 26,
at 164. As Madison observed elsewhere, "The latent causes of faction are thus sown in the
nature of man; and we see them every where brought into different degrees of activity,
according to different circumstances of civil society." THE FEDERALIST No. 10 (James
Madison), reprinted in 1 DEBATES, supra note 26, at 406.
31 THE FEDERALIST No. 10 (James Madison), reprinted in 1 DEBATES, supra note 26,
32 THE FEDERALIST No. 51 (James Madison), reprinted in 2 DEBATES, supra note 26,
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bay the grasping desires of people in government to obtain more power. 33
The best way to achieve that result was to divide power among various
individuals and groups. 34
A third major principle underlying this system is that "The
government of the United States has been emphatically termed a
government of laws, and not of men." 35 This means that rules are
followed despite circumstances and the law offers favor to no one. As
Judge Bork put it during his confirmation hearings: "The judge, to
deserve that trust and that authority, must be every bit as governed by
law as is the Congress, the President, the State Governors and
legislatures, and the American people. No one, including a judge, can be
above the law." 36 Connected with this principle is the fact that we have a
written constitution, which carries with it certain implications. 37
The first implication of our written constitution is that "(tihe
Constitution created a Federal government of limited powers." 38 The
government, therefore, cannot enlarge or contract its powers without
amending the Constitution. The second implication is that the courts
usually should invoke the Constitution as an instrument of continuity in
the system. This is how judges employed the Constitution originally. In
the past, "Decisions holding acts unconstitutional had done no more than
uphold or block legislative or executive initiatives." 39 The reason for this
necessarily follows from the first implication: if the government's powers
are limited and enumerated, then a judge invoking the Constitution has
only so much material to call upon in making his decision. Charles
Cooper, former clerk to Chief Justice Rehnquist, elaborates: "Once a
33 See John Fonte & John Andrews, Why 'The Federalist' Belongs in the Classroom,
INDEPENDENCE ISSUE PAPER (Independence Institute), Dec. 6, 1991, at
http://i2i.org/SuptDocs/Education/FederalistBelongs.htm (last visited Nov. 15, 2001).
In a sense, the entire American constitutional edifice of a democratic
republic with majority rule and minority rights, federalism, limited
government, and the separation of powers among legislative, executive and
judicial branches is based [upon] the Founders' concept of human nature as
derived from their experience and their reading of history.
34 See Calabresi, supra note 5, at 785-86.
35 Marbury v. Madison, 5 U.S. 137, 163 (1803).
36 Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the
United States: Hearings Before the Comm. on the Judiciary, United States Senate, 100th
Cong. 103 (1987) (opening statement of Robert H. Bork). This speaks to the boundaries
within which a judge can make a ruling. Improper judicial activism, as I said earlier, relies
on the judge's personal predilections of what the law should be, rather than what the law
is. The hope is that structural activism is less likely to be used this way, and thus conforms
to this important principle of our republic.
37 Calabresi, supra note 7, at 1438.
38 Gregory v. Ashcroft, 501 U.S. 452, 457 (1991); see also, United States v. Lopez,
514 U.S. 549, 552 (1995) ("The Constitution creates a Federal Government of enumerated
39 Cox, supra note 15, at 128.
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judge ventures beyond the Constitution and the laws of our society, he
has only his individual conscience to call upon, and a judge's conscience
is not law." 40 In other words, the judge should not amend the
Constitution. The Constitution should be a landmark of destination in
constitutional jurisprudence, not a landmark of departure. The third
implication of our written constitution is that judicial review is
inferred. 41 Limited powers and written-down boundaries imply that
there must be some enforcement of those provisions, since "Ithe
distinction between a government with limited and unlimited powers is
abolished, if those limits do not confine the persons on whom they are
imposed." 42 Because "[uit is emphatically the province and duty of the
judicial department to say what the law is," 43 the duty for policing the
boundaries of Constitutional power falls prominently on the courts.
In addition to a fear of centralized political power, the inherent
corrupt nature of man, and the establishment of a government of laws
with a written constitution, another key principle to understanding the
role of structure in our government is the belief that "[n] o man is allowed
to be a judge in his own cause; because his interest would certainly bias
his judgment, and, not improbably, corrupt his integrity.""4 This rule
represents another justification for judicial review. If Congress could
pass laws without any check on whether the legislation was
constitutional, it would "subvert the very foundation of all written
constitutions," 5 because Congress, not the Constitution, would be the
supreme law of the land. 46
A final principle concerning structure and the foundation of our
government, one that cannot be over-stressed, is that the constitutional
design exists to protect the people, not just abstract ideas. In other
words, "Any purported dichotomy between constitutional structure and
40 Charles Cooper, Panel Discussion, supra note 8, at 59.
41 See Marbury v. Madison, 5 U.S. 137, 177-78 (1803); see also supra text
accompanying note 11; see also EATON, supra note 9, at 14.
42 Marbury, 5 U.S. at 176-77.
43 Id. at 177. This particular passage is often quoted as purported support by
Marshall of judicial exclusivity in constitutional interpretation. The misrepresentation is
unfortunate because all Marshall was referring to, in the context of the opinion, is the duty
of the judiciary to explain the law when a case comes before it. Of course the judge will tell
the parties what the law is in adjudicating a dispute; that does not mean that Congress
and the President are not able to make their own determinations of what the Constitution
means. Indeed, Congress does so each time it passes legislation.
44 THE FEDERALIST NO. 10 (James Madison), reprinted in 1 DEBATES, supra note 26,
45 Marbury, 5 U.S. at 178.
46 John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311,
1383 (1997); see also City of Boerne v. Flores, 521 U.S. 507, 529 (1997).
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constitutional rights is a dangerous and false one." 47 Government
institutions are designed to serve as buffers against encroachments on
personal liberties. 4 8 This connects to the previous point that the Bill of
Rights is not the whole or even the focus of the Constitution. The Bill of
Rights was a supplement to the original Constitution, not a replacement.
"The Bill of Rights and the structural elements of the Constitution
should be viewed as a whole . . . ."49 To give short shrift to the structures
of our Constitution is to do great violence to the system as a whole.
"[Tihe entire Constitution was created to avoid tyranny and protect
liberty. To separate out the individual rights provisions for special
judicial protection ignores the document's careful intertwining of 'backup'
systems." 50 Moreover, not only does "bifurcation between
constitutional structure and substantive law" lead to unfaithful
renderings of the text, it also "leads to most unsatisfactory
These principles lead to one conclusion: that structure is vitally
important to any proper understanding of the Constitution and,
consequently, to proper use of judicial review. "The Framers of the
Constitution could not command statesmanship. They could simply
provide structures from which it might emerge." 52 The Founders did the
only thing they could to provide for a lasting Constitution: frame the
system for success, because after they died the substantive actions of
government would be up to succeeding generations. If the system is
ignored or, worse, deliberately sabotaged, then the parchment-inscribed
words of the Constitution may as well turn to dust; the checks and
balances designed to counteract man's power-hungry ambitions would be
worthless, and even the precious freedoms embodied in the Bill of Rights
would prove little protection against the onslaught of concentrated
political power. 5 3
47 Redish & Cisar, supra note 29, at 452.
49 Yoo, supra note 46, at 1392.
50 Redish & Cisar, supra note 29, at 493.
51 Richard A. Epstein, The Cartelization of Commerce, 22 HARV. J.L. & PUB. POL'Y
209, 209 (1998). As usual, Epstein deals with the practical consequences of the structural
theories on the market, rather than their logical pull. This particular article of Epstein's
does not primarily focus on policy, but for an excellent piece focusing on this angle, see
Richard A. Epstein, The Proper Scope of the Commerce Power, 73 VA. L. REV. 1387 (1987).
52 Clinton v. City of New York, 524 U.S. 417, 452-53 (1998) (Kennedy, J.,
53 See Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting).
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B. The Framework of Structure
1. Separation of Powers
Given their general importance, it is prudent to examine more
closely each of these structures, and how they are intended to work.
Light will be shone on these structures, bearing in mind the impact that
proper judicial activism should have on each. There were no secrets to
the overarching plan of the Founders in writing the Constitution. They
a national government of limited powers, with those powers divided
among the three branches, each with a different function and different
personnel, and all of this in the context of a federal system in which a
large amount of the totality of all governmental power would be
reserved to the states. 5 4
Two major features of that design are separation of powers and
In arguing for passage of the Constitution, Madison tells us that the
"accumulation of all powers legislative, executive and judiciary in the
same hands, whether of one, a few or many, and whether hereditary, self
appointed, or elective, may justly be pronounced the very definition of
tyranny." 5 Because of this, the Founders wrote the principle of
separation of powers directly into the Constitution. 56 As noted above, the
Founders' primary concern was preventing the concentration of political
power, and the separation of powers went directly to this goal. The idea
was grounded on "the deceptively simple principle that no branch may
be permitted to exercise any authority definitionally found to fall outside
its constitutionally delineated powers." 57 The theory holds that if a
person or body is given power to do two or all three of these functions, it
would be very easy to go against the people's wishes and deny freedom
unjustly. For instance, if a person possessing such power promulgated a
law ordering that all babies under the age of two should be killed, that
person could implement the law as well using the executive power. There
would be no way to prevent the execution of the unjust law. If the
legislative and executive functions are divided as the Constitution
provides, however, then the executive could simply refuse to implement
54 Pasco Bowman, The Separation of Powers: Myth or Reality?, in DERAILING THE
CONSTITUTION 114, 117 (Edward B. McLean ed., 1995).
55 THE FEDERALIST NO. 47 (James Madison), reprinted in 2 DEBATES, supra note 26,
56 "All legislative Powers herein granted shall be vested in a Congress of the United
States .... U.S. CONST. art. I, § 1. "The executive Power shall be vested in a President of
the United States of America." U.S. CONST. art. II, § 1, cl. 1. "The judicial power of the
United States, shall be vested in one Supreme Court, and in such inferior Courts as
Congress may from time to time ordain and establish." U.S. CONST. art. III, § 1.
57 Redish & Cisar, supra note 29, at 453.
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the unjust law, protecting the citizenry. Additionally, since the judicial
department in such a system is separate and independent from the other
two, it could declare the law void and have it thrown out altogether,
using the power of judicial review.
Of course, that is the theory. As the Supreme Court has noted, for
the Founders, "[Tihe doctrine of separation of powers was not mere
theory; it was a felt necessity." 58 Therefore, Madison and the others
believed that "a mere demarkation [sic] on parchment of the
constitutional limits of the several departments, is not a sufficient guard
against those encroachments which lead to a tyrannical concentration of
all the powers of government in the same hands." 59 They needed more
than the words in the Constitution to insure that this vital principle
would be observed. To that end, the Founders included what have
become known as checks and balances in the framework of the
Constitution. The goal was a government where "the powers of
government should be so divided and balanced among several bodies of
magistracy, as that no one could transcend their legal limits, without
being effectually checked and restrained by the others." 60 When Madison
said, "[aimbition must be made to counteract ambition," 61 he meant, in
part, that each branch should watch the others. Thus, we have the
Presidential veto, Senate confirmation of Presidential appointments,
judicial appointments by the President, and so on. "[The Constitution]
enjoins upon its branches separateness but interdependence, autonomy
but reciprocity." 62
The Founders were attacked for this "mixture" of powers, so
ingrained was the idea of separation in the minds of the people.63 Yet,
because they believed that the doctrine needed to be more than a
"parchment barrier," the Founders stuck to their proposal.
The men who met in Philadelphia in the summer of 1787 were
practical statesmen, experienced in politics, who viewed the principle
of separation of powers as a vital check against tyranny. But they
likewise saw that a hermetic sealing off of the three branches of
58 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 593 (1952) (Frankfurter,
59 THE FEDERALIST No. 48 (James Madison), reprinted in 2 DEBATES, supra note 26,
60 Id. at 139.
61 THE FEDERALIST No. 51 (James Madison), reprinted in 2 DEBATES, supra note 26,
62 Youngstown Sheet & Tube Co., 343 U.S. at 635 (Jackson, J., concurring).
63 See, e.g., Reply to Wilson's Speech: "Centinel"[Samuel Bryan] 11 (1787), in 1
DEBATES, supra note 26, at 77, 87; Reply to Wilson's Speech: "Cincinnatus"[Arthur Lee] V
(1787), in 1 DEBATES, supra note 26, at 114, 117; Joseph Spencer to James Madison,
Enclosing John Leland's Objections (1788), in 2 DEBATES, supra note 26, at 267, 269.
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Government from one another would preclude the establishment of a
Nation capable of governing itself effectively.64
Out of the theory of separation comes the principle of nondelegation.
Congress may not delegate its legislative power to the
President, not only to prevent tyranny, but also to hold Congress
accountable. 65 "Unchecked delegation would undercut the legislature's
accountability to the electorate and subject people to rule through ad hoc
commands rather than democratically considered general laws." 66 If
Congress could delegate its legislative power to the executive, people
could not find out easily who is responsible for legislation they disagree
with or wish to change. 67 The non-delegation principle holds even though
Congress presumably waives it voluntarily. This is because "the concept
of congressional waiver ignores the fact that separation of powers
protections were not inserted to protect the other branches, but rather to
protect the populace." 68 So, not only is separation of powers designed to
be a preventive measure against tyranny; it is also supposed to enhance
the working of democracy. 69
Separation of powers is clearly an important institutional tool, and
as the Court has pointed out, "To preserve those checks, and maintain
the separation of powers, the carefully defined limits on the power of
each Branch must not be eroded." 70 The only questions remaining are:
how are the lines between the branches drawn, and who is to draw
them? The first question is beyond this paper's scope, and so it is
minimally addressed. Traditionally, promulgation of laws is generally
considered a legislative function, while their execution is considered an
executive function, and interpretation of those laws in the context of a
particular dispute is a judicial function. Defining which is which on some
occasions is a difficult task, as even James Madison admitted. 71 No
64 Buckley v. Valeo, 424 U.S. 1, 121 (1976).
65 Field v. Clark, 143 U.S. 649, 692 (1892).
66 David Schoenbrod, The Delegation Doctrine: Could the Court Give it Substance?,
83 MICH. L. REV. 1223, 1224 (1985).
67 Id. at 1244-45.
68 Redish & Cisar, supra note 29, at 487. This point is similar to one we shall see
later concerning federalism. Structural principles, just like the Bill of Rights, are first and
foremost intended as protections for the people, not the government.
69 Justice Kennedy puts it pointedly: "Abdication of responsibility is not part of the
constitutional design." Clinton v. City of New York, 524 U.S. 417, 452 (1998) (Kennedy, J.,
concurring). For a work expounding on the value of the separation of powers as a bulwark
of liberty, see Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. PA. L.
REV. 1513 (1991).
70 INS v. Chadha, 462 U.S. 919, 957-58 (1983).
71 James Madison to Thomas Jefferson (Oct. 24, 1787), reprinted in 1 DEBATES,
supra note 26, at 192, 198. "Even the boundaries between the Executive, Legislative &
Judiciary powers, though in general so strongly marked in themselves, consist in many
instances of mere shades of difference." Id.
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matter how they are defined in detail, because the Constitution explicitly
states that the federal government only possesses those powers
delegated to it (through written enumeration), "the separation of powers
provisions clearly impose an absolute, rather than a conditional,
standard of implementation." 72
Tied closely to the necessity of an absolute standard is the answer to
the second question: who draws the lines distinguishing power between
the branches? This question dovetails directly with the themes of this
paper. Two requirements are necessary to have a vigorous separation of
powers doctrine: absolute standards and an independent judiciary. 73 The
Founders believed that the courts would be a necessary part of
separation enforcement. As mentioned above, checks and balances were
a key ingredient to the Founders' version of separation of powers.
Judicial review was one of those checks. Alexander Hamilton referred to
the courts as "bulwarks of a limited constitution against legislative
encroachments." 4 The Founders believed that "the courts were designed
to be an intermediate body between the people and the legislature, in
order, among other things, to keep the latter within the limits assigned
to their authority." 75 Part of that protection includes holding fast to the
separation of powers principle. This is one of the several reasons that the
Constitution provides for an independent judiciary: an independent
arbiter is needed to settle disputes of power between the executive and
legislative branches. To have Congress decide for itself what powers it
can delegate would violate the founding principle, discussed in Part A,
that no one is to be the judge in his own case; the conflict of interest for
Congress is obvious. 76 Conversely, leaving the decision to the President
feeds the natural desire for power that the Founders sought so far as
possible to squelch.
Dividing the powers of government seems almost second nature to
us, since it has been practiced for so long. At the Constitution's
inception, it was considered a relatively new, scientific advance in the
72 Redish & Cisar, supra note 29, at 503. For a work attempting to give an answer
on how to define the powers along this line, see Schoenbrod, supra note 67 (offering a
complex theory for the Court in attempting to enforce the delegation doctrine to replace the
unworkable "intelligible principle" rule, and giving several reasons why it should do so. He
argues for a qualitative test for proper delegation of power by Congress to the Executive, as
opposed to a quantitative one).
73 Redish & Cisar, supra note 29, at 458.
74 THE FEDERALIST No. 78 (Alexander Hamilton), reprinted in 2 DEBATES, supra
note 26, at 471-72.
75 Id. at 470.
76 Redish & Cisar, supra note 30, at 498.
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practice of government. 77 It was deemed so important to the creation of
the new government that the writers of the Constitution deliberately
placed the powers of each branch of government in three separate
articles of the document, to emphasize their distinct natures and unique
responsibilities. Yet, separation for its own sake was not the goal, as we
have seen with the simultaneous creation of the system of checks and
balances. Protection of liberty, within a working system of government,
was the goal. That is still the goal and the reason why judicial activism
is necessary in this area. The judiciary fulfills its duty in the separation
scheme, enforces congressional accountability, and protects the people as
a whole when it enforces a strict separation of powers doctrine. 78
On the subject of federalism, John Marshall stated that "[iun
America, the powers of sovereignty are divided between the government
of the Union, and those of the states. They are each sovereign, with
respect to the objects committed to it, and neither is sovereign with
respect to the objects committed to the other." 79 Put simply, "our
Constitution establishes a system of dual sovereignty between the states
and the Federal Government." 80 This design was nothing short of
revolutionary, and, perhaps, not so simple. It was a common maxim of
politics before the Constitution that two sovereign entities could not
exist within the same boundaries. Anti-Federalists, such as Thomas
Tredwell, pointed this out consistently as a flaw in the new
governmental system. "The idea of two distinct sovereigns in the same
country, separately possessed of sovereign and supreme power, in the
same matters at the same time, is as supreme an absurdity, as that two
distinct separate circles can be bounded exactly by the same
circumference." 8 ' The idea understandably confused them, and even
confused some of the Constitution's supporters. 8 2 This confusion led to
77 "The chief improvement in government, in modern times, has been the compleat
[sic] separation of the great distinctions of power. . . ."Reply to Wilson's Speech: "Centinel"
[Samuel Bryan] 11 (1787), reprinted in 1 DEBATES, supra note 26, at 77, 87.
78 Schoenbrod, supra note 67, at 1278. The Court is not the only check in the
separation scheme, obviously, but it plays a pivotal role.
79 McCulloch v. Maryland, 17 U.S. 316, 410 (1819).
80 Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).
81 1 THE DEBATES, RESOLUTIONS, AND OTHER PROCEEDINGS, IN CONVENTION, ON
THE ADOPTION OF THE FEDERAL CONSTITUTION 6 (Jonathan Elliot ed., Washington 1827).
82 "Can the sovereignty of each state in all its parts exist, if there be a sovereignty
over the whole[?] Is it not nonsense in terms, to suppose an united government of any kind,
over 13 co-existent sovereignties?" Rebuttal to "An Officer of the Late Continental Army":
"Plain Truth", INDEPENDENT GAZETTEER (Philadelphia), Nov. 10, 1787, reprinted in 1
DEBATES, supra note 26, at 105-06. Historian Forrest McDonald has observed, "[The
Founders] introduced an entirely new concept into the discourse, that of federalism, and in
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repeated attacks that the Constitution would destroy the sovereignty of
the states. 83 The Founders, just as repeatedly, denied these claims. "The
proposed Constitution, so far from implying an abolition of the State
Governments, makes them constituent parts of the national sovereignty
by allowing them a direct representation in the Senate, and leaves in
their possession certain exclusive and very important portions of
Given the controversy, "[ilt would be in vain to deny the possibility
of a clashing and collision between the measures of the two
governments." 85 Accordingly, Justice O'Connor proclaimed that
"discerning the proper division of authority between the Federal
Government and the States" is a question "as old as the Constitution." 86
This old question arises because the principle of federalism, that
different levels of government possess authority in different areas, is not
textually stated in the Constitution. The reason the Supreme Court
accepts it as a "fundamental principle" is that federalism is fairly easily
implied in the Constitution. 87 The Tenth Amendment all but states the
principle in black and white: "The powers not delegated to the United
States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people." 85 However, recall
that many Founders felt the Bill of Rights originally unnecessary -
particularly in this area. James Madison cited the principle of
enumeration, flowing from a written constitution, as proof of the matter.
"The powers delegated by the proposed Constitution to the Federal
Government are few and defined. Those which are to remain in the State
Governments are numerous and indefinite." 8 9 This fact, a written
constitution, testifies to the existing sovereignty of the states.
the doing, created a novas ordo seclorum: a new order of the ages." Forrest McDonald,
Novus ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE CONSTITUTION, 261 (1985).
83 "[I] repeat, that the proposed constitution must eventually annihilate the
independant [sic] sovereignty of the several states." "The Defect is in the System Itself:
Robert Whitehill on the Dangers of the Powers of Congress and the Illogic of the Habeas
Corpus Clause, reprinted in 1 DEBATES, supra note 26, at 811.
84 THE FEDERALIST No. 9 (Alexander Hamilton), reprinted in 1 DEBATES, supra note
26, at 344. It will be noticed that half of the argument Hamilton gives here for state
sovereignty, i.e., the election of Senators to Congress by state legislatures, no longer exists
because of the Seventeenth Amendment. This structural change will play a part in some
observations later in the paper.
85 Gibbons v. Ogden, 22 U.S. 1, 238 (1824) (Johnson, J., concurring).
86 New York v. United States, 505 U.S. 144, 149 (1992).
87 Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).
88 U.S. CONST. amend. X.
89 THE FEDERALIST No. 45 (James Madison), reprinted in 2 DEBATES, supra note 26,
at 105. Alexander Hamilton expressed a similar sentiment, believing that "the State
Governments would clearly retain all the rights of sovereignty which they before had and
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One statement in the text, however, arguably changes everything:
the Supremacy Clause. 90 Several view this clause as the proverbial
"trump card" in federalism issues. 91 That was certainly the feeling of
many opposed to the proposed Constitution. The dissenters in the
Pennsylvania ratifying convention, listing their reasons for voting in the
negative, stated that:
two co-ordinate sovereignties would be a solecism in politics... one or
the other would necessarily triumph in the fullness of dominion.
However, the contest could not be of long continuance, as the state
governments are divested of every means of defence, and will be
obliged by "the supreme law of the land" to yield at discretion. 92
That threat of Federal dominance, however, remained relatively
benign for about seventy-five years, as the Supreme Court policed the
boundaries between state and federal power with a careful eye. 93 Then
something happened which changed the federal-state structure
dramatically: the Civil War. "[Hlistorical federalism has been repealed
by history. Much of that repeal occurred at the time of the Civil War
when the Thirteenth and Fourteenth Amendments to the Constitution
were passed, conferring broad new powers on the federal government." 9
The Court did not take broad practical notice of this until the 1930s.
Beginning in the 1930s, however, and with accelerating speed after
1937, the Supreme Court began to abandon its textually implied role
of playing jurisdictional policeman in order to take up a new
antitextual role as a nationalist rights-creating body. The structural
constitutionalism of the written text fell by the wayside .... 95
Some believe that this change announced the death of federalism in
America. 9 6 Today's Supreme Court apparently does not agree. Justice
O'Connor referred to our system as one of "dual sovereignty" in an
opinion for the Court in 199197 and quoted at length some very strong
which were not by that act exclusively delegated to the United States." THE FEDERALIST
No. 32 (Alexander Hamilton), reprinted in 1 DEBATES, supra note 26, at 678.
90 "This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of
the United States, shall be the supreme Law of the Land.. . ." U.S. CONST. art. VI, cl. 2.
91 Dissent of the Minority of the Pennsylvania Convention, PENNSYLVANIA PACKET
(Philadelphia), Dec. 18, 1787, reprinted in 1 DEBATES, supra note 26, at 538.
93 Calabresi, supra note 21, at 1377.
94 Richard Neely, Mother, God, and Federalism, in DERAILING THE CONSTITUTION,
supra note 55, at 89-90; see also Yoo, supra note 46, at 59 n.10.
95 Calabresi, supra note 21, at 1377.
96 Neely, supra note 94, at 90 ("When today's political science professors point out
that the federal government is a government of'delegated' powers, we all chuckle because
by common consent state power has become more a matter of administrative convenience
than an element of sovereignty.").
97 Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).
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states-rights language from an 1869 Supreme Court decision. 98 While
this may indeed represent more lip-service than reality to the federalism
situation today, the Court has backed these strong words with several
federalism-premised decisions. 99 So it seems that federalism's funeral
was premature, and it behooves us to notice why this structural
provision has been so resilient a constitutional player.
The chief danger the Founders sought to guard against was a
concentration of political power. In a republic, this could happen just as
easily through a tyranny of the majority as a tyranny of one branch of
government. One charge against the proposed Constitution, and one of
the known political axioms of the time, was that for a republic to
function, it must be small in geographic size, because the representatives
of the government must be capable of gauging the needs and desires of
the people. 10 0 The larger the sphere being governed, the more difficult
James Madison and the other Founders turned this axiom on its
head, claiming that "the larger the society, provided it lie within a
practicable sphere, the more duly capable it will be of self
government." 10 1 Madison explained that to secure the public good and
private rights from the dangers of factions (i.e. special interests) ruling
in government, it was necessary to
leixtend the sphere, and you take in a greater variety of parties and
interests; you make it less probable that a majority of the whole will
have a common motive to invade the rights of other citizens; or if such
a common motive exits, it will be more difficult for all who feel it to
discover their own strength, and to act in unison with each other. 0 2
98 Id. (quoting Texas v. White, 74 U.S. (7 Wall.) 700, 725 (1868)).
Not only, therefore, can there be no loss of separate and independent
autonomy to the States, through their union under the Constitution, but it
may be not unreasonably said that the preservation of the States, and the
maintenance of their governments, are as much within the design and care
of the Constitution as the preservation of the Union and the maintenance of
the National Government. The Constitution, in all its provisions, looks to
an indestructible Union, composed of indestructible States.
99 See Printz v. United States, 521 U.S. 898 (1997) (holding that Congress cannot
commandeer state executive officials to carry out federal programs, without the officials'
consents); United States v. Lopez, 514 U.S. 549 (1995) (holding that the "Gun Free School
Zone Act" exceeded congressional authority to regulate interstate commerce); New York v.
United States, 505 U.S. 144 (1992) (holding generally that the Constitution does not
authorize Congress to commandeer state legislatures to legislate for them).
100 THE FEDERALIST No. 51 (James Madison), reprinted in 2 DEBATES, supra note 26,
101 Id. at 168.
102 THE FEDERALIST No. 10 (James Madison), reprinted in 1 DEBATES, supra note 26,
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Moreover, not only does federalism diminish the likelihood of a
tyranny by the people; as Hamilton explained, it also discourages
tyranny by government.
This balance between the national and the state governments ought to
be dwelt on with peculiar attention, as it is of the utmost
importance.-It forms a double security to the people. If one
encroaches on their rights, they will find a powerful protection in the
other.-Indeed they will both be prevented from overpassing their
constitutional limits, by a certain rivalship, which will ever subsist
between them. 103
Federalism thus protects the liberty of the people from their
governments by having two of them, and it protects liberty from factions
of people by extending the sphere that a faction must control before it
becomes potent. This is why Madison believed that in "the extent and
proper structure of the Union, therefore, we behold a Republican remedy
for the diseases most incident to Republican Government." 1o4 The chance
for a successful republic hinges heavily on proper structure.
The Court has invalidated statutes commandeering state officials
because skirting the structure of federalism diminishes the
accountability of Congress and of state officials. "Accountability is thus
diminished when, due to federal coercion, elected state officials cannot
regulate in accordance with the views of the local electorate in matters
not pre-empted by federal regulation." 1 5 Both parties can "pass the
buck:" Congress by having state officials implement unpopular
programs, keeping congressmen "insulated from the electoral
ramifications of their decision;" 10 6 and state officials by blaming Congress
for passage of unpopular legislation. The people thereby have difficulty
holding the responsible party accountable, defeating the purpose of a
republic.1 0 7 A strict adherence to federalism prevents this occurrence.
"American federalism in the end is not a trivial matter or a quaint
historical anachronism. American-style federalism is a thriving and vital
institutional arrangement." 10 8 As the Supreme Court has explained,
103 Melancton Smith and Alexander Hamilton Debate Representation, Aristocracy,
and Interests (1788), reprinted in 2 DEBATES, supra note 26, at 772.
104 THE FEDERALIST No. 10 (James Madison), reprinted in 1 DEBATES, supra note 26,
105 New York v. United States, 505 U.S. 144, 169 (1992).
107 See United States v. Lopez, 514 U.S. 549, 576-77 (1995).
If, as Madison expected, the Federal and State Governments are to control
each other ... and hold each other in check by competing for the affections
of the people ... those citizens must have some means of knowing which of
the two governments to hold accountable for the failure to perform a given
108 Calabresi, supra note 5, at 770.
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[Federalism] assures a decentralized government that will be more
sensitive to the diverse needs of a heterogeneous society; it increases
opportunity for citizen involvement in democratic process; it allows for
more innovation and experimentation in government; and it makes
government more responsive by putting the States in competition for a
mobile citizenry. 10 9
Most importantly, as the Founders emphasized, federalism serves as a
check on the abuse of government power, helping achieve the
Constitution's main goal. 110
The only question remaining is who polices the boundaries between
the federal and state governments? The necessity of a policeman seems
obvious. "If this 'double security' [of federalism] is to be effective, there
must be a proper balance between the States and the Federal
Government. These twin powers will act as mutual restraints only if
both are credible. In the tension between federal and state power lies the
promise of liberty.""' Once again the first principles discussed in Part A
come into play. Since our written Constitution implies the federalist
system, and because a State or Federal legislative branch deciding who
controls what violates the rule that no man should be a judge in his own
case, an impartial arbiter is needed to canvass the structure of the Great
Text and decide these issues. If Congress called the shots, it would
clearly be able to all but destroy the states, given the existence of the
Supremacy Clause. If the State legislatures called the shots, the Federal
government would become impotent, as was the case under the Articles
The impartiality of the judiciary again plays a vital role. Some
believe that federal courts will not be impartial in reality, because when
they expand Congress' power, they expand their own. 112 The force of this
argument is difficult to deny. However, "When we talk about the
institutional competence of either the Court or Congress [or any body for
that matter], we must remember that we are talking about an 'as
compared to what' question .... A perfect, reliable institutional actor
does not exist." 113 Congress is the institution best suited to policy-making
109 Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).
S11 Id. at 459.
112 Brutus, an arch Anti-Federalist, predicted as much:
Every body of men invested with office are tenacious of power.., the same
principle will influence them [the judiciary] to extend their power, and
increase their rights; this of it itself will operate strongly upon the courts to
give such a meaning to the constitution in all cases where it can possibly be
done, as will enlarge the sphere of their own authority."
Brutus X/, N.Y. J., Jan. 31, 1788, reprinted in 2 DEBATES, supra note 26, at 129,
113 Lillian R. BeVier, Religion in Congress and the Courts: Issues of Institutional
Competence, 22 HARV. J.L. & PUB. POL'Y 59, 62-63 (1998).
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because it takes the widest range of views into consideration, it can act
prophylactically, and it allows for broad public debate. It is not the
perfect institution of law-making, but it is the best our experience has
enabled us to produce. The same argument applies to the judiciary in
deciding federalism questions. An impartial actor familiar with the
system of the Founders is necessary to make these decisions. Is the
Court ideally impartial for the task? It probably is not, but it is the best
institutional actor we have for the task. It only makes sense that
"continuing vigilance of the courts in protecting states' rights is of
critical importance if the state-federal balance of power so necessary to
the preservation of our liberty is to be maintained." n4
C. Separation of Powers and Federalism: A Seamless Web
Examined individually, separation of powers and federalism are
both important concepts in our constitutional scheme. Yet, we only
studied them in this manner for ease of examination. In reality, the two
are anything but separate. "[The Framers] used the principles of
separation of powers and federalism to secure liberty in the fundamental
political sense of the term, quite in addition to the idea of freedom from
intrusive governmental acts." 115 In fact, federalism can be seen as part of
the system of separation of powers because it separates power vertically,
where division of power among the branches separates it horizontally. As
Madison himself indicates,
In the compound republic of America, the power surrendered by the
people, is first divided between two distinct governments, and then the
portion allotted to each, subdivided among distinct and separate
departments. Hence a double security arises to the rights of the
people. The different governments will controul each other; at the
same time that each will be controuled by itself. 116
Sometimes, when faced with attacks on their model of federalism,
the Founders responded by pointing to the separation of powers as an
additional bulwark for preserving federalism.11 7 In New York v. United
States, 11 8 a federalism case, the Court cites two separation of powers
114 John C. Yoo, Judicial Review and Federalism, 22 HARV. J.L. & PUB. POLY 197
(1998). When I say "courts," in this case I refer to those both at the state and federal levels.
Both exist to protect rights, thus both also exist to secure structure.
115 Clinton v. City of New York, 524 U.S. 417, 452 (1998) (Kennedy, J., concurring).
116 THE FEDERALIST No. 51 (James Madison), in 2 DEBATES, supra note 26, at 166.
The reader will note the stark similarity between this point and the one made by Hamilton
found in the text at note 104. The repetition is no accident, because the scheme of
government was no accident. Creating "double securities" for the people against tyranny
from any quadrant constantly consumed the designs of the Founders.
117 Yoo, supra note 46, at 1384-85.
118 New York v. United States, 505 U.S. 144 (1992).
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cases, Buckley v. Valeo" 1 9 and INS v. Chadha, 120 to make its point
concerning the consent of state officials to congressional actions. "The
constitutional authority of Congress cannot be expanded by the 'consent'
of the governmental unit whose domain is thereby narrowed, whether
that unit is the Executive Branch or the States." 121 All of this
demonstrates that federalism and separation of powers are inextricably
linked together. "Just as the separation and independence of the
coordinate branches of the Federal Government serve to prevent the
accumulation of excessive power in any one branch, a healthy balance of
power between the States and the Federal Government will reduce the
risk of tyranny and abuse from either front." 122 A dedication to one
requires dedication to the other, and more important for our purposes,
judicial cognizance of one demands that both be upheld to insure that
the Constitution's framework is implemented in an accurate and
III. JUDICIAL REVIEW AND THE STRUCTURAL CONSTITUTION
So far, we have looked at the immense importance of the
Constitution's structures for the proper working of government and
protection of the people. For this article's purpose, that is only half the
story. Judicial review, the greatest countermajoritarian structure in the
whole constitutional scheme must be examined in detail to see when its
exercise is justified. The dogmatic Anti-Federalist, Brutus, describing
the Supreme Court, said:
It is, moreover, of great importance, to examine with care the nature
and extent of the judicial power, because those who are to be vested
with it, are to be placed in a situation altogether unprecedented in a
free country. They are to be rendered totally independent, both of the
people and the legislature, both with respect to their offices and their
salaries. No errors they commit can be corrected by any power above
them, if any such power there be, nor can they be removed from office
for making ever so many erroneous adjudications. 123
Brutus may be guilty of some hyperbole, but makes a sound point:
no other judicial body in the world had the power that is invested in the
Supreme Court through the Constitution. Once again, the Founders
turned political theory on its head; the common wisdom was that the
people always knew best and ought not be questioned. The Founders
119 Buckley v. Valeo, 424 U.S. 1 (1976).
120 INS v. Chadha, 462 U.S. 919 (1983).
121 New York, 505 U.S. at 182.
122 Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).
123 "Brutus"XI, N.Y. J., Jan. 31, 1788, reprinted in 2 DEBATES, supra note 26, at 129,
129. We shall visit with Brutus a few more times before the end of this section because his
observations prove telling, even if exaggerated.
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agreed with this to a great extent, but not in its entirety. They believed
that certain principles of the government needed firmer grounding than
a simple reliance on the passions of the people. This belief sprang from
the principle discussed in Section II, Part A, that people were fallible and
often succumbed to their darker passions. The Founders maintained that
"it is the reason of the public alone that ought to controul and regulate
the government. The passions ought to be controuled and regulated by
the government." 124
This was one reason for a written constitution that was difficult to
amend: people's darker passions must be kept from changing the
Constitution each time something excited them. Our written
Constitution intentionally placed certain principles beyond the ordinary
reach of the people. After all, the point of a written constitution is
diminished, if not obliterated, if it is constantly changed. 125 The
Constitution was not intended to be entirely democratic. 126 Controlling
the public's passions was also a reason behind creating an independent
judicial branch with appointments that last during good behavior and
untouchable salaries for the judges. The Founders wanted a branch that
would handle constitutional questions in a dispassionate and reasoned
way, one that would not be afraid of challenging the will of the people
when extraordinary circumstances called for it. The Articles of
Confederation did not provide for a judicial branch, so no venue existed
to settle federal questions. No constitutional challenge to legislation
could be made at the federal level. The Founders attempted to remedy
these things through the creation of a body with an unprecedented
power: judicial review.
There is doubt, but not an immense amount of it, that the Founders
intended judicial review to exist. Alexander Hamilton observes in
Federalist 78, "[ln a government in which [the different departmentsl
are separated from each other, the judiciary, from the nature of its
functions will always be the least dangerous to the political rights of the
constitution; because it will be least in a capacity to annoy or injure
them."'1 27 People may chuckle when they read this, assuming that
Hamilton must not have taken into account, or conceived of, the power of
judicial review when he wrote this now famous text. The facts are the
opposite. In the same paper, Hamilton expressed the first rationale for
124 THE FEDERALIST No. 49 (James Madison), reprinted in 2 DEBATES, supra note 26,
125 Just look at France, with its experience of the Revolution of 1789 and the ensuing
Terror of 1793-1794.
126 J. Clifford Wallace, The Jurisprudence of Judicial Restraint: A Return to the
Moorings, 50 GEO. WASH. L. REV. 1, 2 (1981).
127 THE FEDERALIST, No. 78 (Alexander Hamilton), reprinted in 2 DEBATES, supra
note 26, at 468.
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judicial review, one that John Marshall would copy later in his Marbury
v. Madison 128 opinion.
The complete independence of the courts of justice is peculiarly
essential in a limited constitution .... Limitations of this kind can be
preserved in practice no other way than through the medium of the
courts of justice; whose duty it must be to declare all acts contrary to
the manifest tenor of the constitution void. 1 29
The argument for judicial review given here is purely structural:
judicial review exists because of the fact of a written constitution and the
need to keep a limited government within its proscribed boundaries.
Hamilton carries the structural importance of the judiciary even further.
"[Tihe courts," Hamilton says, "were designed to be an intermediate body
between the people and the legislature, in order, among other things, to
keep the latter within the limits assigned to their authority." 130 Hamilton
was not the only Founder to explicitly argue for judicial review, 131 and
each made the appeal on structural and institutional grounds, taking
care to emphasize the independence of the judiciary.
Brutus also predicted the existence of judicial review, but, unlike
his adversaries, he did not look upon the innovation as a cause for
celebration. He charged that
in their decisions [the Supreme Court] will not confine themselves to
any fixed or established rules, but will determine, according to what
appears to them, the reason and spirit of the constitution .... This
128 Marbury v. Madison, 5 U.S. 137 (1803).
129 THE FEDERALIST No. 78 (James Madison), reprinted in 2 DEBATES, supra note 26,
130 Id. at 470.
131 James Wilson, second only to Madison in influence on the crafting of the
Constitution, and later a justice of the Supreme Court, remarked in the Pennsylvania
ratifying convention that "when [congressional legislation] comes to be discussed, before
the judges-when they consider its principles, and find it to be incompatible with the
superior power of the constitution, it is their duty to pronounce it void." James Wilson
Replies to Findley (1787), reprinted in 1 DEBATES, supra note 26, at 820, 823.
Oliver Ellsworth, a staunch Federalist and later Chief Justice of the Supreme Court
for four years, described his view of the courts under the proposed constitution in the
Connecticut ratifying convention:
This constitution defines the extent of the powers of the general
government. If the general legislature should at any time overleap their
limits, the judicial department is a constitutional check. If the United
States go beyond their powers, if they make a law which the constitution
does not authorise, it is void; and the judicial power, the national judges,
who to secure their impartiality are made independent, will declare it void.
Oliver Ellsworth Defends the Taxing Power and Comments on Dual Sovereignties and
Judicial Review (1788), reprinted in 1 DEBATES, supra note 26, at 887, 883; see also,
"Americanus" [John Stevens, Jr.] VII, DAILY ADVERTISER (N.Y.), (Jan. 21, 1788), reprinted
in 2 DEBATES, supra note 26, at 60.
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power in the judicial, will enable them to mould the government, into
almost any shape they please. 132
Though some may think that this is exactly what happened, and
there is ample cause to think as such, it is not what the Founders
intended. "In its inception, judicial review was a limited and legalistic
concept, a product of logic designed to serve a carefully defined
purpose." 133 The "legalistic concept" was for the Court to serve as one of
the checks on the other branches powers. As Hamilton responded to the
The courts must declare the sense of the law; and if they should be
disposed to exercise WILL instead of JUDGMENT, the consequences
would equally be the substitution of their pleasure to that of the
legislative body. The observation, if it proved any thing, would prove
that there ought be no judges distinct from that body [Congress]. 134
Forming a government without a judiciary had already been tried
under the Articles of Confederation, an abysmal failure, and so the
Founders (and even more importantly the People, who ratified the
Constitution) were not about to make the same mistake twice. Hamilton
and other supporters of the Constitution truly believed that the judiciary
would possess "neither Force nor Will, but merely judgment; and must
ultimately depend on the aid of the executive arm even for the efficacy of
its judgments." 135 In other words, the powers vested in the judiciary were
the least susceptible to despotism, because the courts could do little or
nothing without the acquiescence of at least one of the other two
branches to carry out their decisions.
Regardless of what the Founders intended, because of the absence of
an explicit rendering in the text and its ostensible operation as an antidemocratic
device, judicial review is "a deviant institution in the
American democracy." 136 Judicial review is not celebrated (outside
132 "Brutus" XI, N.Y. J. (Jan. 31, 1788), reprinted in 2 DEBATES, supra note 26, at
129, 132, 135.
133 EATON, supra note 9, at 13.
134 THE FEDERALIST No. 78 (James Madison), reprinted in 2 DEBATES, supra note 26,
135 Id. at 468. Hamilton's point is buttressed by the findings of Forrest McDonald,
The delegates devoted less time to forming the judiciary-and less
attention to careful craftsmanship-than they had expended on the
legislative and executive branches. In part the judiciary received minimal
consideration because it was regarded as the least powerful and least active
branch of government. In part, too . . . the delegates were in general
agreement as to the principles that should be embodied in forming it.
MCDONALD, supra note 82, at 253.
136 ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT
AT THE BAR OF POLITICS 18 (1962). It should be noted that not everyone agrees that the
Court, properly understood, is a countermajoritarian device. It can be argued that when
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narrow legal circles) for its wonderful contributions to the American
political system. "The root difficulty is that judicial review is a countermajoritarian
force in our system." 137 This observation by the late
Professor Alexander Bickel is the chief criticism of judicial review in
general and judicial activism in particular. The "counter-majoritarian
difficulty" 138 is that, in general, decisions in our society are supposed to
be made by the elective branches of our government. When a judge
declares an act of Congress or the President void, he short-circuits the
democratic process, and at the Supreme Court level, places the issue out
of the reach of ordinary debate. 139 This practice can damage the very
system it is designed to maintain, namely rule by the People through a
government of laws. 140 Judge Bork presents the problem in a slightly
The central problem for constitutional courts is the resolution of
the "Madisonian Dilemma." The United States was founded as a
Madisonian system, which means that it contains two opposing
principles that must be continually reconciled. The first principle is
self-government, which means that in wide areas of life majorities are
entitled to rule, if they wish, simply because they are majorities. The
second is that there are nonetheless some things majorities must not
do to minorities, some areas of life in which the individual must be
free of majority rule. The dilemma is that neither majorities nor
minorities can be trusted to define the proper spheres of democratic
authority and individual liberty. To place that power in one or the
other would risk either tyranny by the majority or tyranny by the
minority.' 4 '
the Court strikes down a law as void against the Constitution, it is simply finding in favor
of the supermajority that approves of the Constitution.
137 Id. at 16.
139 Overturning a decision by the Supreme Court requires either an Amendment to
the Constitution or a changing of the guard on the Bench, neither of which happens easily
140 The great constitutional scholar James Bradley Thayer puts it thus:
It should be remembered that the exercise of [the power ofjudicial review],
even when unavoidable, is always attended with a serious evil, namely that
the correction of legislative mistakes comes from the outside, and the
people lose the political experience, and the moral education and stimulus
that comes from fighting the question out in the ordinary way, and
correcting their own errors. The tendency of a common and easy resort to
this great function.., is to dwarf the political capacity of the people, and to
deaden its sense of moral responsibility.
THAYER, JOHN MARSHALL 106-07 (1920).
141 ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE
LAW 139 (1990).
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Bork's analysis leaves something to be desired, 142 but the major
point survives: how do we adhere to rule by the People while
maintaining the supremacy of the law of the Constitution? Maintaining
constitutional supremacy is, after all, the chief purpose of judicial
review; the government must be kept within its constituted bounds to
insure that the system works properly and that the people's rights are
This dilemma/difficulty is chiefly solved through structural judicial
activism. 143 This type of activism promotes majorities, judicial selfrestraint,
and fidelity to the Constitution. The way that structural
activism promotes majorities is simply through the design of the system.
In federalism cases, such a judiciary chooses which majority should
govern as between national majorities and state majorities .... In
separation of powers cases, the federal judiciary chooses which
majority should govern as between the national majority which elects
the President every four years through the medium of the Electoral
College and the very different national majority which selects the
Congress over a six year cycle in races that go on district by district
and state by state. 144
In essence, where structural cases are concerned, the countermajoritarian
difficulty is mitigated, if not completely resolved, because
the judiciary is not choosing between a majority and a minority per se. It
is choosing between two different types of majorities within our system.
Both state majorities and national majorities exist in our federalist
system; likewise, congressional majorities and presidential majorities
exist in our separation of powers scheme. 145 Choosing one or the other is
not an intolerable subversion of our system; it is precisely the way the
system was intended to work, provided the Court's decision is based
upon fidelity to the Constitution. Thus, structural activism singularly
limits problems arising from the counter-majoritarian difficulty.
Structural activism also promotes judicial self-restraint. Judicial
restraint means that to avoid "usurping the policymaking role of the
democratically elected bodies and officials, a judge should always be
142 Bork overemphasizes both the influence of Madison in creating the system and
the amount of tension that actually exists in our system. Moreover, the reason we do not
allow majorities to decide everything is not simply because of a fear of tyranny of the
minority or majority. It is also because the nature of humanity is such that the people may
not always be vigilant in protecting their freedoms. Thus, some structures are necessary to
supplement the people's vigilance; this protection is part of the system as well. For a telling
but not wholly accurate critique of Bork, see Jaffa, supra note 2, at 291.
143 It will never fully be solved: that is the nature of the imperfect institutions we
must live with; see supra note 113 and surrounding text.
144 Calabresi, supra note 21, at 1383.
145 This explains why we end up with "split tickets" many times at the national
level, with Congress being held by one political party, and the other party holding the
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hesitant to declare statues or governmental actions unconstitutional." 146
Restraint is a beneficial trait in our judicial system because it "preserves
fundamental constitutional precepts. It encourages the separation of
powers, protects our democratic processes, and preserves our
fundamental rights." 147 It does these things by keeping judicial hands out
of the "cookie jar" of policymaking. Courts are ill-equipped to make policy
for several reasons, ranging from a lack of necessary information to an
inability to change its decisions in a timely fashion. 148 More pointedly,
the Founders already argued about whether the Supreme Court should
have a role in policymaking. At the Convention, some proposed a
"Council of Revision" for legislative purposes, which would have
consisted of the President, some of his Cabinet, and the Supreme Court,
reviewing congressional legislation on policy grounds. The idea was
rejected soundly. 149 The system kept policymaking out of the courts'
hands. Given these things, the courts need to practice judicial restraint
much of the time - the system assumes as much through the separation
of powers, as the statements of Hamilton and others indicate. 150
Self-restraint is the only real check on the judiciary, given its
independent nature. 151 As the twelfth Chief Justice of the Supreme
Court, Harlan Fiske Stone said, "While the unconstitutional exercise of
power by the executive and legislative branches of the government is
subject to judicial restraint, 152 the only check upon our own exercise of
power is our own sense of self-restraint." 153 Since this is the case, and
given the precarious role judicial review holds in our system, it makes
sense that an active judiciary should have a proper place only on rare
occasions. When the Court acts on structural bases, it is practicing
restraint in the sense that it is not imputing its own preferences over
those of the People; rather it is placing constitutional constraints over
the preferences of the particular majoritarian institution that committed
the voided act.
146 Wallace, supra note 127, at 8.
147 Id. at 16.
148 Id. at 6. These are some of the very reasons that Congress is responsible for
policymaking in the first place. See also, Edwin Meese III, Putting the Federal Judiciary
Back on the Constitutional Track, 14 GA. ST. U. L. REV. 781, 784 (1998).
149 MCDONALD, supra note 82, at 242.
150 Wallace, supra note 127, at 8 ("The constitutional trade-off for independence is
that judges must restrain themselves from the areas reserved to the otherf separate
151 Senator Charles E. Grassley, Foreword to EATON, supra note 9, at xiv. It is true
that judges can be impeached, but this occurs so little as to be almost no check at all. There
are also the structural checks of the "case and controversy" and standing requirements, but
history has shown that these can be easily manipulated by judges with little self-restraint.
152 And electoral restraint.
153 United States v. Butler, 297 U.S. 1, 78-79 (1936) (Stone, J., dissenting).
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This is not a conventional way of looking at restraint versus
activism. Judge Justice' 54 provides the traditional view of the legal
establishment: "Proponents of judicial self-restraint can also be defined
in contrast to those jurists and scholars who view the court as the
legitimate counter-majoritarian force in our democracy." 15 Judge
Justice's view is precisely the kind of categorization I wish to refute.
Believing that judicial review (of a certain kind) and self-restraint are at
odds is an incorrect juxtaposition. A judge who believes in structural
judicial activism still follows the standards of proper statutory
interpretation. The structural activist "respects the process of democratic
decisionmaking embodied in legislative enactments," 156 takes care not to
embroil himself "unnecessarily in the turbulent waters of political
controversy," 157 and practices what Charles Lamb calls the "maxims of
restraint." 158 The structural activist does these things because, above all,
the judge respects the principles upon which the Constitution is founded
and the People for whom he adjudicates. For structural activists, several
laws that they consider unwise or downright stupid will nonetheless be
upheld as constitutional. 5 9 "We begin, of course, with the presumption
that the challenged statute is valid. Its wisdom is not the concern of the
courts; if a challenged action does not violate the Constitution, it must be
sustained." 160 The concern is not the substantive wisdom of the
legislation, but the structural impact of its provisions.
Ultimately, the main concern of judicial activism should be fidelity
to the Constitution, because judicial review is a legal tool so fraught with
dangers in our tradition that it ought to be used in only the most
justifiable, least dangerous way. "The process is justified only if it is as
deliberate and conscious as men can make it."161 Structural activism is
preferable because it comports best with the text and history of the
Constitution. It is the least dangerous because it simply rules in favor of
one majority over another, thus lessening the criticism of judicial
review's counter-majoritarian nature. More importantly, structural
activism finds its decisions in the foundation of the Constitution, rather
154 See supra notes 16 and 17 and accompanying text.
155 William Wayne Justice, The New Awakening: Judicial Activism in a Conservative
Age, 43 Sw. L.J. 657, 671 (1989).
156 Anderson, supra note 3, at 1561.
157 ARCHIBALD Cox, THE ROLE OF THE SUPREME COURT IN AMERICAN GOVERNMENT
158 Anderson, supra note 3, at 1560.
159 Baker v. Carr, 369 U.S. 186, 270 (1962) (Frankfurter, J., dissenting) ("[Tihere is
not under our Constitution a judicial remedy for every political mischief, for every
undesirable exercise of legislative power. The Framers carefully and with deliberate
forethought refused to so enthrone the judiciary.").
160 INS v. Chadha, 462 U.S. 919, 944 (1983).
161 BICKEL, supra note 137, at 96.
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than the ideas of the judge. With the practice of improper judicial
activism, the Constitution becomes "an authoritative occasion for, rather
than a norm of, judicial interpretation." 162 Proper judicial activism aims
for the latter course. It recognizes that "the Constitution is form; an
appeal to 'function' is a claim that something else would be better than
the Constitution, which may be true but nevertheless isn't an admissible
argument about interpretation of the structure we have." 163 This
formalism makes structural activism more conducive to drawing bright
There are three general arguments for judicial activism: (a)
personal preferences; (b) natural or higher law; and (c) the nature of the
regime (also known as the argument from democracy or republic). As we
have seen, some judges, such as William Justice or Skelly Wright believe
in the first justification, one that this article rejects as improper judicial
activism. The second finds its grounding in "a belief in natural law," a
sense judges have been appealing to ever since Calder v. Bull. 1 6 The
third argument rests its force on the Constitution itself, on the concept
that "American democracy is not simply majority rule; rather, it is a
constitutional democracy. The majority rules within the bounds of the
Constitution, and the limits of the Constitution only have meaning if
there is somebody there to enforce those limits." 165 The difficulty among
these arguments arises when attempting to tell the difference between
when a judge is relying on personal preferences, which is not justified,
and when he is relying on natural or higher law, which is more justified.
The line is so precarious as to be almost indiscernible. 166 Given this
tendency of judicial review, the only safe course is the one that is clearly
the most justified: the argument from structure. Since judicial review
carries with it this inherent problem, it makes sense to concentrate on
the cases that present the proper role of the judiciary as jurisdictional
The sense of structural judicial activism rests, as I have said, on the
precarious nature of judicial review as a legal device. Thus, the power of
the Court is premised on the legitimacy of judicial review. "Lacking
power of the purse or the sword, the Court must rely upon the power of
legitimacy - upon the capacity to evoke uncoerced assent and strong
162 Russell Hittinger, A Crisis of Legitimacy, in THE END OF DEMOCRACY? THE
JUDICIAL USURPATION OF POLITICS 18 (1997).
163 Easterbrook, supra note 23, at 15.
164 Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798).
165 Chemerinsky, supra note 8, at 30.
166 Justice Iredell observed in Calder, "The ideas of natural justice are regulated by
no fixed standard: the ablest and the purest men have differed upon the subject..." Calder
v. Bull, 3 U.S. at 399.
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public support." 167 Such is the reason that appeals to natural law have
been so prevalent by the Court over the years: it speaks to the hearts of
the public. The sense of public support is bred by the belief that the
Court's decisions are made based upon the law, something about which
the judges presumably have special insight, as opposed to being based on
simple policy preferences, on which judges possess no more expertise
than the proverbial man on the street.
In order to acquiesce in court decisions, and to comply with their
requirements, the people must believe that the court system, and the
Supreme Court especially, is governed by a rule of law, not a rule of
men. We must believe that the judicial system insulates us from the
whims of individual judges, from the prejudices, and from their areas
of ignorance. 1 68
Here the rule of law blends with the separation of powers. Courts
are designed to be insulated from politics to a great degree because their
decisions should be concretely grounded in the law. The other branches
handle the politics; the judiciary interprets the law. l69 If it were
otherwise, the warning by President Lincoln in his First Inaugural
Address could come to fruition:
[T]he candid citizen must confess that if the policy of the Government
upon vital questions affecting the whole people is to be irrevocably
fixed by decisions of the Supreme Court . . .the people will have
ceased to be their own rulers, having to that extent practically
resigned their government into the hands of that eminent tribunal. 1 70
The People must respect judicial decisions to obey them. That
respect and legitimacy come most readily when decisions are grounded
in the founding document of our Government: the Constitution. Such is
why nearly every opinion written in Supreme Court history dealing with
a constitutional issue pays at least face-value homage to the
Constitution, with each justice claiming that his or her opinion comports
best with the sense of the document. "The Court is most vulnerable and
comes nearest to illegitimacy when it deals with judge-made
constitutional law having little or no cognizable roots in the language or
design of the Constitution." 7 ' To preserve its power and legitimacy, the
Court ought to focus mainly on structure, where judicial activism is
167 Cox, supra note 15, at 122. See also Baker v. Carr, 369 U.S. 186, 267 (1962)
(Frankfurter, J., dissenting) ("The Court's authority-possessed of neither the purse nor
the sword-ultimately rests on sustained public confidence in its moral sanction.").
168 EATON, supra note 9, at 7.
169 This is not, of course, to say that legal decisions have no political ramifications;
they clearly do. It simply means that so far as possible, the politics of the situation should
be separated from the legal question before the court.
170 Abraham Lincoln, First Inaugural Address (Mar. 4 1861), in INAUGURAL
ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES: FROM GEORGE WASHINGTON 1789
TO GEORGE BUSH 1989 at 133 (U.S. G.P.O. 1989).
171 Bowers v. Hardwick, 478 U.S. 186, 194 (1986).
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concerned. The Court gains its power of judicial review from the design
of the Constitution and as such should not practice that tool of last resort
outside of its confines. The system's preferences for majorities, the
separation of powers, judicial restraint, and the rule of law all point to
practicing activism in one main way: as a jurisdictional policeman
patrolling the structural boundaries of the Constitution.
IV. THE CRITICS RESPOND AND ARE REJOINED
Alternatives to the approach advocated in this paper vary in degree
of difference and span the ideological spectrum. Perhaps the starkest
contrast comes from the "political safeguards" theory of federalism. First
argued by Professor Herbert Wechsler 172 in the 1950s and given its
strongest voice by Professor Jesse Choper 173 in the 1980s, it argues that
"the states do not need judicial protection from expansive federal
legislation, because their role in the makeup and the operation of the
national government provides them with sufficient means to protect
their rights." 1 74 Wechsler and Choper's main reason for making this
argument is that they believe the Court should "conserve judicial
legitimacy for what really counts: the protection of individual rights."l?5
Choper in particular argues that the Court possesses only limited
authoritative capital, and that capital ought to be spent adjudicating
individual rights cases. The position assumes that states are adequately
represented in the national political process, so "any exercise of power by
the federal government at the expense of the states therefore was ipso
facto constitutional because the states . . . had given their political
assent."1 76 The theory found its Supreme Court voice in Garcia v. San
Antonio Metropolitan Transit Authority. 77 Additionally, although its
main focus is federalism, the "political safeguards" theory includes also
the "separation proposal," which holds that all questions involving
allocations of power between Congress and the President ought to be
172 Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States
in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543
173 JESSE CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A
FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME COURT (1980).
174 Yoo, supra note 46, at 1312. Along essentially the same lines is Professor Herbert
Hovenkamp's recent assertion that "history has made abundantly clear that the political
process is quite effective at reducing federal assertions of power in favor of state
prerogatives." Herbert Hovenkamp, Judicial Restraint and Constitutional Federalism: The
Supreme Court's Lopez and Seminole Tribe Decisions, 96 COLUM. L. REV. 2213, 2221
175 Yoo, supra note 46, at 1319.
176 Id. at 1325.
177 Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), overruled in
part by United States v. Lopez, 514 U.S. 549 (1995).
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non-justiciable "because of the political branches' abilities to use other
tools at their disposal to resolve their differences." 178
In essence, Choper's theory represents an approximately opposite
view to the one presented here. Choper believes individual rights cases
to be the most important on the Court's docket and thus they should
receive its full attention. Federalism and separation of powers issues
basically take care of themselves and so do not necessitate the Court's
intervention. This theory seems reasonable, but it abounds with
problems. Even assuming arguendo that political safeguards were
adequate protection for the states when Weschler first proposed his
theory, the situation has altered dramatically since then. Cloture is now
available in the Senate by a three-fifths vote on most matters, rather
than two-thirds. Rural districts are no longer "over-represented" in the
House of Representatives because of the one person, one vote rule.
Redistricting now is done just as much by the courts as it is by the state
legislatures. Television has nationalized Senate elections. Federal grants
for highways and other programs are used by Congress as carrots to pass
national laws on drinking, seat belts, speeding, and so forth. 79 Even
reaching back before the 1950s the state/federal equation had swung
decisively over to the federal side. The state legislatures no longer select
Senate members; instead, the people elect them by popular vote,
eliminating what the Founders' believed to be the most important
representative protection of the states in the federal government. 180 The
New Deal nationalized farm relief, retirement, and poverty programs.' 8 '
All of these factors add up to the conclusion that "[bloth analytically and
impressionistically, the Wechsler-Choper view seems at least a little odd
in the political world of today - an historical anomaly that no longer
quite seems to fit."182
Looking past the national level to the states, the Choper theory fails
to account for the possibility that state officials have several incentives
to welcome federal intervention rather than protect state interests.
Justice O'Connor makes this point in New York'8 3 when discussing
locations for radioactive waste disposal centers:
If a state official is faced with the same set of alternativeschoosing
a location or having Congress direct the choice of a locationthe
state official may prefer the latter, as it may permit the avoidance
of personal responsibility. The interests of public officials thus may not
178 Yoo, supra note 46, at 1318-19.
179 Calabresi, supra note 5, at 792-93.
18o THE FEDERALIST No. 45 (James Madison), reprinted in 2 DEBATES, supra note 26,
181 Yoo, supra note 46, at 1321.
182 Calabresi, supra note 5, at 793.
183 New York v. United States, 505 U.S. 144 (1992).
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coincide with the Constitution's intergovernmental allocation of
authority. Where state officials purport to submit to the direction of
Congress in this manner, federalism is hardly being advanced.l1 4
Richard Neely observes that the "states are more interested in
spending federal bucks than they are in preserving state sovereignty. To
my knowledge no state (except, possibly, Arizona in one instance) has
turned down federal money to stand on federalist principle!"1 8 5 Neely
believes this to be a positive turn of events; regardless, it demonstrates
that political safeguards are inadequate to protect the structure of
More important than the fact that the Weschler-Choper theory fails
on functional grounds, is that it fails on formal constitutional grounds.
Choper's approach is unable even to detect "whether or not separation of
powers has been maintained because it makes no attempt to define or
examine it. He solves the problem of interbranch disputes by simply
assuming they do not require resolution (at least not by the judiciary)."186
The same criticism applies to his federalism proposal. In essence, Choper
ignores the structures of the Constitution because he assumes that,
functionally, things will work out to their most efficient end.
Worse, and even more dangerous, is Choper's separation of
individual rights from the Constitution's structure. As this article has
discussed, the whole point of the structures of the Constitution is the
protection of the People's liberty against tyranny. Choper's position is "a
highly anachronistic view because the Bill of Rights did not appear in
the Constitution when Article III first vested in the judiciary the power
to adjudicate cases arising under the Constitution." 187 Finally, Choper's
theory is premised on the belief that the Court can pick and choose the
constitutional provisions it wants to enforce. "Nothing in the nature of
the judiciary's role authorizes it effectively to repeal provisions of the
Constitution." 88 In fact, the independence of the judiciary makes it
especially suited to handle disputes between different levels and
different branches of government. Few reasons exist to ignore completely
either the structure of the Constitution or the provisions in the Bill of
184 Id. at 183.
185 Neely, supra note 94, at 90.
186 Redish & Cisar, supra note 29, at 493.
189 1 have not and am not saying that substantive violations of the Constitution
should not be invalidated by the Supreme Court. Thus, a statute preventing anarchists
from espousing their views could and should be struck down as an obvious violation of the
First Amendment. What I am saying is that these decisions by the Court should only be
made in the rare cases of clear mistake or the other established rules of statutory
construction. On structural issues, the Court ought to be less reticent.
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Richard Neely takes a different functional approach toward
essentially the same end as Choper. He asks, "[I]f the states themselves
aren't interested in [the] principle [of federalism], why should we be?" 90
He contends that federalism is now simply a matter of administrative
convenience, and where it interferes with governmental efficiency, its
principles ought to be set aside. 191 Professor Douglas Laycock goes one
step further and contends that "[Ilederalism no longer divides power in
any meaningful way. Instead, federalism duplicates and multiplies
This view ignores some vital points. In the first place, according to
Justice O'Connor's opinion in New York, the fact that state officials may
not care about their sovereignty does not mean that the Court or the
country should not care about it. Moreover, concentrating on what
federalism does for the states, just as concentrating on what the
separation of powers does for each of the branches, misses the larger
point. "ITihe Constitution divides authority between federal and state
governments for the protection of individuals. State sovereignty is not
just an end in itself." 193 So, whether the states are interested in
protecting themselves or not, individual freedoms still deserve to be
protected by government structure. Perhaps delegated power has become
more "a matter of administrative convenience than an element of
sovereignty." 194 However, either the principle of delegation stands, or the
Constitution falls; there is no other way around it. It defeats the whole
purpose of a written Constitution to assign meaning solely on the basis
of convenience or efficiency.
Efficiency is emphatically not central to our Constitution; ordered
liberty is the main point. "The Constitution's structure requires a
stability which transcends the convenience of the moment." 195 Efficiency
is not the acid test for constitutionality. "[Tihe fact that a given law or
procedure is efficient, convenient, and useful in facilitating functions of
government, standing alone, will not save it if it is contrary to the
Constitution. Convenience and efficiency are not the primary objectives -
or the hallmarks - of democratic government." 19 6 The famous saying that
"at least Mussolini made the trains run on time" was not intended as a
compliment: a government can be an efficient tyrant. "The choices we
discern as having been made in the Constitutional Convention impose
190 Neely, supra note 94, at 90.
192 Douglas Laycock, Federalism as a Structural Threat to Liberty, 22 HARv. J.L. &
PUB. POL'Y 67, 80-81 (1998).
193 New York v. United States, 505 U.S. 144, 189 (1992).
194 Neely, supra note 94, at 90.
195 Clinton v. City of New York, 524 U.S. at 448 (Kennedy, J., concurring).
196 INS v. Chadha, 462 U.S. 919, 944 (1983).
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burdens on governmental processes that often seem clumsy, inefficient,
even unworkable, but those hard choices were consciously made by men
who had lived under a form of government that permitted arbitrary
governmental acts to go unchecked." 197 If it is efficiency we want, we
ought to forego the right to vote altogether: the information,
campaigning, and time involved make for highly inefficient government.
"With all the obvious flaws of delay, untidiness, and potential for abuse,
we have not yet found a better way to preserve freedom than by making
the exercise of power subject to the carefully crafted restraints spelled
out in the Constitution."198 Those restraints include a Court that patrols
the boundaries of delegated government power.
Proponents of Choper's theory argue that defining sharp lines
between executive and legislative functions or between national and
local functions is too difficult for the courts. 199 This argument fails,
however, because determining which fundamental rights are "implicit in
the concept of ordered liberty," 200 or which rights comport with the
"mystery of human life" 201 is not an easy task either. Even speaking more
generically, "the line-drawing and fact-finding problems here are no
more difficult than they are in the context of determining what
constitutes an impermissible endorsement of religion or when . . .
unprotected obscenity becomes protected pornography." 202 Professor
Choper admitted as much: "A great many of the personal liberties
questions that the Court decides . . . similarly subsume large policy
issues with complex and debatable factual considerations." 203 To admit
this in structural areas of constitutional adjudication is simply to
acknowledge that several issues are not cut and dried; if they were, we
would not need a court system at all. The Court should not shy away
from an issue because it is difficult; rather, it should shy away if the
Constitution offers no guidance. Federalism and separation of powers
issues, however, are clearly within the import of the Constitution. A
supporter of structural activism need not prove that all delegation of
power questions will be decided correctly. What he must do is attempt to
remain dedicated to the first principles of the Constitution.
197 Id. at 959.
198 Id.; see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952).
199 Hovenkamp, supra note 174, at 2220.
200 Palko v. Connecticut, 302 U.S. 319, 325 (1937).
201 Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992) (For the record, the
actual quote is: "At the heart of liberty is the right to define one's own concept of existence,
of meaning, of the universe, and the mystery of human life.") Id. Structural cases simply
are not conducive to such open language.
202 Calabresi, supra note 5, at 804.
203 CHOPER, supra note 173, at 203.
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Dedicated pursuit of an ideal is a legitimating reality, even though the
reach exceeds the grasp, provided that the people know that the effort
is undertaken. And the value of the ideal is not diminished by
acknowledging that its conscientious pursuit serves the utilitarian
function of giving legitimacy to constitutional decisions. 20 4
Criticism of the viewpoint espoused in this article could conceivably
also come from the right side of the political spectrum, because of its
traditionally staunch support of judicial restraint, as we have seen with
President Reagan, Judge Bork, and Professor Graglia. Perhaps the
strongest criticism of judicial activism came in a 1996 symposium
entitled: "The End of Democracy? The Judicial Usurpation of Politics," 20 5
by First Things, a conservative religious journal. It is an appeal that
serves as a valuable wake-up call concerning the dangers inherent in
judicial review. However, it goes overboard in establishing its case. For
instance, the editors of First Things write that the "government of the
United States of America no longer governs by the consent of the
governed. With respect to the American people, the judiciary has in
effect declared that the most important questions about how we ought to
order our life together are outside the purview of 'things of their
knowledge. ' "' 2 6 This article does not contend for a moment that
substantive judicial activism has been good for this country. 2 7 But to say
that the People no longer govern on any issues of importance borders on
hyperbole. "The courts have not, and perhaps cannot, restrain
themselves, and it may be that in the present regime no other effective
restraints are available. If so, we are witnessing the end of
Problems abound with that statement. In the first place, as this
article reiterates, we do not have a democracy; we have a system of
constitutionalism: the People rule within bounds designed to inhibit
their darker passions. Secondly, the restraints on the courts are
available and exist within the system. To declare the system a dismal
failure after over two hundred years simply because the Supreme Court
has taken on the role of "knight errant" 20 9 on some occasions throws the
204 Cox, supra note 15, at 138.
205 Robert H. Bork et. al, Symposium, The End of Democracy? The Judicial
Usurpation of Politics, FIRST THINGS 18, Nov. 1996, reprinted in THE END OF DEMOCRACY?
THE JUDICIAL USURPATION OF POLITICS (1997).
206 Id. at 5.
207 Professor Graglia puts it rather humorously when he asks, "[Wihat part of the
Constitution do you think Justice Harry Blackmun was interpreting in Roe v. Wade, when
he held that state restrictions on abortion violate the Due Process Clause of the Fourteenth
Amendment-was it the word 'due' or the word 'process?'" Graglia, supra note 14, at 297.
208 Bork, Our Judicial Oligarchy, supra note 205, at 6.
209 United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193, 218
(1979) (quoting Justice Cardozo).
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baby out with the bath water. The contributors to the First Things
debate decry the evils of judicial activism, but they enthusiastically
support the idea of natural law.210 As we saw in Part III, as well as in
Part I while defining judicial activism, natural law is open to the same
abuses that judicial activism engenders. In fact, several of the decisions
about which First Things complains, such as Roe, ground their opinions
in a kind of natural law jurisprudence. The point here is not that the
editors of First Things must either support Roe v. Wade or renounce
natural law - clearly their version of natural law can be different from
the Court's in Roe; the point is to understand that judging inherently
involves the kinds of problems that the editors declare represent the
"end of democracy." The solution to those problems is not to declare the
system broken, but to demand adherence to true fidelity to that system
(i.e., the Constitution). And it is perfectly within the power of the People
to demand this, because, as we have learned, the power of the Supreme
Court is wholly dependent on its legitimacy. 21 '
Obviously, several other theories of constitutional jurisprudence
exist that have not been addressed. Only those that speak most directly
to the position being advocated in this article have been rejoined.
Structural activism is but one piece of the constitutional fabric, but it is
a very important piece. It is time for advocates of both jurisprudential
activism and judicial restraint to consider its validity.
Having preached the virtues of judicial restraint for several
generations, conservatives will have to reevaluate their position. As
they did in the late 1930's, liberals and conservatives in the late 1990's
will debate about whether the courts or the political process are better
equipped to police the boundaries of federalism and the separation of
210 Bork, Our Judicial Oligarchy, supra note 205, at 6 ("Among the most elementary
principles of Western Civilization is the truth that laws which violate the moral law are
null and void and must in conscience be disobeyed.").
211 Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a
National Policy-Maker, 6 J. PUB. L. 279, 285 (1957).
The fact is ... that the policy views dominant on the Court are never for
long out of line with the policy views dominant among the lawmaking
majorities of the United States. Consequently it would be most unrealistic
to suppose that the Court would, for more than a few years at most, stand
against any major alternatives sought by a lawmaking majority.
Of course, sadly this is part of the problem to begin with-that the
Court follows policy preferences at all, when it ought to be following the
Constitution. But the point here is that the Court can only get away with what
we let it get away with, given a certain amount of time.
212 Jeffrey Rosen, Nine Votes for Judicial Restraint, N.Y. TIMES, June 29, 1997, at
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In evaluating the role of the federal judiciary in our system and,
more specifically, the proper place for judicial activism in the courts, it
must be remembered that, with the passage of the Constitution, the
Founders implemented a novus ordo seclorum: a new order for the
ages. 21 3 The Founders turned the political ideas of the world on their
head. Virtually everyone believed that sovereignty must reside in only
one governmental body, but the Founders divided it between the Federal
and State levels. Most said that the separation of powers required that
the branches of government must be completely separate, but the
Founders split them while providing checks and balances. Conventional
wisdom held that the legislature had to have the final say in what the
laws would be, but the Founders made the People the final arbiters of
the law, through the Constitution. This was not a republic in any of the
ordinary senses of the term. 21 4 Judicial review was part of this new
order, because of the Founder's emphasis on a written Constitution. So,
if it seems that judicial review is a unique tool, it is because it truly is,
and like any of our tools, in the hands of corrupt man it can be misused.
The Founders knew these things, and knew that if this new order was to
succeed, it would require the ongoing vigilance of the government by the
governed. This is why "[w]hen Americans stop arguing about legitimacy,
about just government derived from the consent of the governed, and
about the relationship between laws and higher law, this country will
have turned out to be something very different from what the Founders
"Limiting the federal judiciary, including the Supreme Court, to its
proper Constitutional role thus is a vital liberty issue." 216 This article has
sought to describe some of that proper role, where it concerns the
dangerous but necessary duty of judicial activism. The premise has been
that the structure of the Constitution deserves and demands the main
focus of the Supreme Court, because its fundamental role in our system
213 MCDONALD, supra note 82, at 262.
214 Id. at 287.
That government defied categorization by any existing nomenclature: it
was not a monarchy, nor an aristocracy, nor a democracy, neither yet was it
a mixed form of government, nor yet a confederated republic. It was what it
was, and if Madison was presumptuous in appropriating the word republic
to describe it, he was also a prophet, for thenceforth republic would mean
precisely what Madison said it meant.
215 Richard John Neuhaus, Preface to THE END OF DEMOCRACY, supra note 162, at
216 Edwin Meese III, A Return to Constitutional Interpretation from Judicial
Lawmaking, 40 N.Y.L. SCH. L. REV. 925, 932-33 (1996).
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represents a primary way that judicial review can be legitimate.
Excessive activism, as we have seen, produces grave consequences.
First, there is concern that the Court may sacrifice the power of
legitimacy that attaches to decisions within the traditional judicial
sphere rendered on the basis of conventional legal criteria, and so may
disable itself from performing the narrower but none the less vital
constitutional role that all assign to it. Second, there is fear that
excessive reliance on the courts instead of self-government through
democratic processes may deaden a people's sense of moral and
political responsibility for their own future, especially in matters of
liberty, and may stunt the growth of political capacity that results
from the exercise of the ultimate power of decision. 217
This article does not seek to push judicial activism to the point that
these concerns will come to fruition. Rather, it proposes a partial
antidote to these problems. First, by starting with the founding
principles of this republic: man is fallen; this is a government of laws,
not of men; we have a written constitution; no man is allowed to be the
judge in his own cause; concentration of political power means tyranny;
and the recognition that no dichotomy exists between structure and our
sacred rights, any temptation to place excessive reliance on the courts
instead of self-government is overcome. Second, by recognition of an
adherence to what are the key structures in our system: separation of
powers and federalism. Adherence to these key structures prevents the
courts from whittling away their legitimacy, and focuses their powers on
the narrower, but vital, constitutional role assigned to them.
Proper judicial activism does not threaten the republic; it emboldens
it. When activism leaches into an improper sphere, as it is bound to do, it
remains for us to pull it back, and to remind the judiciary that we are a
government of laws, not of men. While judges may interpret the law,
they are not the law themselves; and when they attempt to equate
themselves to the law, as they do when basing decisions upon their
consciences rather than the Constitution, it is up to us to call them on
the carpet, and point them back to the Text. Respect for the system and
a desire to protect liberty demand no less of us, and proper judicial
activism demands no less a fidelity from judges.
217 COX, supra note 157, at 103.
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