Judicial ReEngineering


Judicial ReEngineering

The e-Advocate

Quarterly Magazine

Exodus 18 | Deuteronomy 1 | Ezra 7

Judicial ReEngineering

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

Judicial ReEngineering

Universal Legal Systems Analysis

“Helping Individuals, Organizations & Communities

Achieve Their Full Potential

1735 Market Street, Suite 3750 | 100 Edgewood Avenue, Suite 1690

Philadelphia, PA 19102 Atlanta, GA 30303

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Jethro Visits Moses

Biblical Authority

Exodus 18


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

Deuteronomy 1

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

Ezra 7

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

Biblical Authority

I. Introduction




The Judiciary

Judicial Independence

Judicial Review

V. Rule of Law

VI. Rule of Higher Law

VII. Political Corruption of the Judiciary

VIII. Conflicts of Interest


Judicial Activism


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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The Judiciary

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.

Other Countries

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

District Courts.

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

appellate courts.

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

Supreme Court.

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

state supreme

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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Hong Kong

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

Page 17 of 115

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.

New Zealand

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.

Page 18 of 115


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.

United Kingdom

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

its judgment.

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).

Page 19 of 115

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

military law.

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 ):

executive cases.

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.

Page 20 of 115


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

Page 21 of 115

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.

The Netherlands

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".

Page 22 of 115

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

criminal) matters;

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).

Page 23 of 115

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.

Sri Lanka

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


Page 24 of 115

South Africa

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,

Page 25 of 115

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.

Page 26 of 115

Page 27 of 115

Judicial Independence

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. [2] 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.

Page 28 of 115

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. [3] 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 [4] 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. [5] Other common law countries, including

Canada, Australia, and India, also adopted the British model of judicial independence. [6]

In recent decades the third phase of judicial independence has come to play in the UK, [7] 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. [8]

Where British national law had previously impacted the international development of judicial

independence, the British Constitutional Reform Act of 2005 [9] 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. [10] 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. [11] 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. [12] The creation of the

Supreme Court was important, for it finally separated the highest court of appeal from the House

of Lords. [13]

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

Page 29 of 115

EU law, [14] in civil law countries such as Austria, and in other common law jurisdictions

including Canada. [15]

International standards

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. [16]

The Justice System

In recent years, the principle of Judicial Independence has been described as one of the core

values of the justice system.

Contemporary Usage

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

the courts.

Furthermore, the independence of the judiciary is guaranteed by the Constitutional Reform Act

2005. [23] 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.

Page 30 of 115

In The United States

Federal Courts

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, [24] 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

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,

Page 31 of 115

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

judicial system.

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,

regional courts,

district courts, and

magistrate courts.

In 1995, the courts sentenced about 1 million people for criminal offenses, and considered 3

million administrative offenses and 2.5 million civil cases.

Constitutional Court

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. [2] 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. [2] 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. [2] It also hears complains by

citizens of allegations of constitutional rights violations. [2]

Supreme Court

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

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

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. [7] 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

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

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. [10] 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.

Court Officers

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

of Justice.

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, [19] 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.

Criminal Procedure

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. [8] 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.

Main Criticism

The arbitrazh courts have been singled out as particularly effective in dealing with business

issues. [9] 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

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

powers: the

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.

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

primary legislation.

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.

Legal Reformation

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.".

Economic Considerations

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". [4] 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


Constitutional Authorization

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

statute unconstitutional.

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.

Page 52 of 115

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

by Congress.

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

within themselves.

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

under obligation

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.

Statutory Limitations

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. [67] That measure died in the

Senate, partly because the bill was unclear about how the bill's own constitutionality would be

decided. [68]

Many other bills have been proposed in Congress that would require a supermajority in order for

the justices to exercise judicial review. [69] 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. [70] 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.

Page 59 of 115

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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.

Middle Ages

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

individual rights.

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."

United States

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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United Nations

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.

Economic Impacts

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."

Constitutional Governance

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.

Judicial Corruption

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

constitutional economics.

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


Economic Effects

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

international market.

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

prospect thereof.

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

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.

Unholy Alliance

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:

Information deficits







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

methods used.

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

office .

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.

Social conditions

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

planned economy.

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

spending fell.

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.

Governmental Corruption

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

and power.

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

standard-setting instruments:

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

(2000) 10);

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

abuses worldwide

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,

and the

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.

Inherent Problems


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.

Government Officials

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

sugar subsidies

> $5,000 100%

$2,500–5,000 97%

$1,000–2,500 68%

$1–1,000 45%

$0 20%

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.

Third-Party Evaluations

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

rent possible).


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

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.

Recusal Generally

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

another judge.

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 ([1924] 1 KB 256, [1923] 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

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

their decisions."

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

political donations.

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

public schools.

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

elected President.

Page 104 of 115

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

(No 2)

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.

Page 105 of 115

Page 106 of 115


1. http://en.wikipedia.org/wiki/Judicial_reform

2. http://en.wikipedia.org/wiki/Judiciary

3. http://en.wikipedia.org/wiki/Supreme_court

4. http://en.wikipedia.org/wiki/Judicial_independence

5. http://en.wikipedia.org/wiki/Judiciary_of_Russia

6. http://en.wikipedia.org/wiki/Law_reform

7. http://en.wikipedia.org/wiki/Judicial_review

8. http://en.wikipedia.org/wiki/Judicial_review_in_the_United_States

9. http://en.wikipedia.org/wiki/Rule_of_law

10. http://en.wikipedia.org/wiki/Political_corruption

11. http://en.wikipedia.org/wiki/Judicial_disqualification

12. http://en.wikipedia.org/wiki/Judicial_activism

13. http://en.wikipedia.org/wiki/List_of_landmark_court_decisions_in_the_United_States

14. http://en.wikipedia.org/wiki/Conflict_of_interest

15. http://en.wikipedia.org/wiki/R_v_Sussex_Justices,_ex_p_McCarthy

16. http://en.wikipedia.org/wiki/R_v_Bow_Street_Metropolitan_Stipendiary_Magistrate,_ex


17. http://iosrjournals.org/iosr-jhss/papers/Vol19-issue2/Version-4/C019242025.pdf

18. http://www.texaslrev.com/wp-content/uploads/Stone-89-TLR-1423.pdf

19. http://regentuniversity.org/acad/schlaw/student_life/studentorgs/lawreview/docs/issues/v


Page 107 of 115

Page 108 of 115

Attachment A

The Role of Judicial Activism

Page 109 of 115

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 ,

I. Introduction:-

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

the Legislature.”

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

court. 20


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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,

said bench.

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)

III. Conclusion:-

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


[1]. 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

[2]. 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

connected discussion").

[3]. Cardozo Benjamin N, The Nature of the Judicial Process, Universal Law Publishing Co.Pvt.Ltd., Delhi, (2004)

[4]. 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.

[5]. 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.

[6]. 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).

[7]. JUDICIAL ACTIVISM IN INDIA- An Overview (By Arjun.M, Administrative Assistant, Centre for Public Policy Research)

[8]. Article 50: The State shall take steps to separate the judiciary from the executive in the public services of the State.

[9]. SheelaBarsevs. State of Maharashtra, (1983) 2 SCC 96

[10]. Labors on Sala Hydro Electricity Project Vs. State of J & K, (1984) 3 SCC 538

[11]. Pradeep Kumar Jain Vs. State of .P., AIR 1984 SC 1420

[12]. Bombay Hawkers Union Vs. B.M.C., (1985) 3 SCC 528

[13]. Center for PIL Vs. Union of India, 1995 Sppl. (3) SCC 382

[14]. ONGC Vs. Collector of Central Excise, 1995 Sppl. (3) SCC 541 (This decision has since been reversed)

[15]. Supra footnote 51.

[16]. M. C. Mehta v. Union of India, (1986) 2 SCC 176

[17]. Shantisar Builders Vs. L. Narayan, (1990) 1 SCC 520

[18]. M. C. Mehta v. Union of India, (1991) 2 SCC 353

[19]. Pranab Mukherjee's note of caution on judicial activism PTI Sep 8, 2012, 07.33PM IST

[20]. SC asks courts to curb judicial activism Sanjay K Singh, TNN Dec 11, 2007, 12.49am IST

[21]. “Judicial Activism v. Judicial Self-Restraint” athttp://legalsutra.org/933/judicial-activism-v-judicial-self-restraint/ as last on 10

July, 2011


25 | Page

Attachment B

Selective Judicial Activism

Page 110 of 115

Selective Judicial Activism


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



2. Id. at 232–33 (quoting Robert G. McCloskey, Reflections on the Warren Court, 51 VA. L.

REV. 1229, 1259 (1965)).


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).


8. STERN & WERMIEL, supra note 1, at 101.

9. Id.

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.


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).


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

constitutional aspirations.

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)).

54. Id.

Attachment C

Proper Judicial Activism

Page 111 of 115


Greg Jones*

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).

HeinOnline -- 14 Regent U. L. Rev. 141 2001-2002


[Vol. 14:141

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.


(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.

HeinOnline -- 14 Regent U. L. Rev. 142 2001-2002



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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[Vol. 14:141

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

Constitution. 20

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


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.


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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[Vol. 14:141

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,

at 407.

32 THE FEDERALIST No. 51 (James Madison), reprinted in 2 DEBATES, supra note 26,

at 163.

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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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[Vol. 14:141

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,

at 406.

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.

48 Id.

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,

at 121.

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,

J., concurring).

59 THE FEDERALIST No. 48 (James Madison), reprinted in 2 DEBATES, supra note 26,

at 141.

60 Id. at 139.

61 THE FEDERALIST No. 51 (James Madison), reprinted in 2 DEBATES, supra note 26,

at 164.

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

2. Federalism

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).


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

sovereign power."84

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,


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.

92 Id.

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

this becomes.

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,

at 167-68.

101 Id. at 168.

102 THE FEDERALIST No. 10 (James Madison), reprinted in 1 DEBATES, supra note 26,

at 410.

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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,

at 411.

105 New York v. United States, 505 U.S. 144, 169 (1992).


106 Id.

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

of Confederation.

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).

110 Id.

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

responsible fashion.


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,

at 146.

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,

at 469.

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,

at 471.

135 Id. at 468. Hamilton's point is buttressed by the findings of Forrest McDonald,

who writes:

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.


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

different way:

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.

138 Id.

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

or often.

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).


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.



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


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


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.


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




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,

at 103.

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.

187 Id.

188 Id.

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

power.1 92

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.

191 Id.

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

democracy." 208

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?


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

powers. 212

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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[Vol. 14:141


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

intended. 215

"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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