Judicial ReEngineering
Judicial ReEngineering
Judicial ReEngineering
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The e-Advocate<br />
Quarterly Magazine<br />
Exodus 18 | Deuteronomy 1 | Ezra 7<br />
<strong>Judicial</strong> <strong>ReEngineering</strong><br />
Universal Legal Systems Analysis<br />
“Helping Individuals, Organizations & Communities<br />
Achieve Their Full Potential”<br />
Vol. IX, Issue XXXVII – Q-2 April | May | June 2023
The Advocacy Foundation, Inc.<br />
Helping Individuals, Organizations & Communities<br />
Achieve Their Full Potential<br />
<strong>Judicial</strong> <strong>ReEngineering</strong><br />
Universal Legal Systems Analysis<br />
“Helping Individuals, Organizations & Communities<br />
Achieve Their Full Potential<br />
1735 Market Street, Suite 3750 | 100 Edgewood Avenue, Suite 1690<br />
Philadelphia, PA 19102 Atlanta, GA 30303<br />
John C Johnson III, Esq.<br />
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www.TheAdvocacyFoundation.org<br />
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Jethro Visits Moses<br />
Biblical Authority<br />
Exodus 18<br />
______<br />
1 Now Jethro, the priest of Midian and father-in-law of Moses, heard of everything God had done for Moses and for<br />
his people Israel, and how the LORD had brought Israel out of Egypt. 2 After Moses had sent away his wife Zipporah,<br />
his father-in-law Jethro received her 3 and her two sons. One son was named Gershom, for Moses said, "I have<br />
become an alien in a foreign land"; 4 and the other was named Eliezer, for he said, "My father's God was my helper;<br />
he saved me from the sword of Pharaoh." 5 Jethro, Moses' father-in-law, together with Moses' sons and wife, came to<br />
him in the desert, where he was camped near the mountain of God. 6 Jethro had sent word to him, "I, your father-inlaw<br />
Jethro, am coming to you with your wife and her two sons." 7 So Moses went out to meet his father-in-law and<br />
bowed down and kissed him. They<br />
greeted each other and then went into the<br />
tent. 8 Moses told his father-in-law<br />
about everything the LORD had done<br />
to Pharaoh and the Egyptians for<br />
Israel's sake and about all the<br />
hardships they had met along the<br />
way and how the LORD had saved<br />
them. 9 Jethro was delighted to<br />
hear about all the good things<br />
the LORD had done for Israel in<br />
rescuing them from the hand of<br />
the Egyptians. 10 He said,<br />
"Praise be to the LORD, who<br />
rescued you from the hand of the Egyptians and of<br />
Pharaoh, and who rescued<br />
the people from the hand of<br />
the Egyptians. 11 Now I know<br />
that the LORD is greater<br />
than all other gods, for he did<br />
this to those who had treated<br />
Israel arrogantly." 12 Then<br />
Jethro, Moses' father-in-law,<br />
brought a burnt offering and<br />
other sacrifices to God, and<br />
Aaron came with all the<br />
elders of Israel to eat bread<br />
with Moses' father-in-law in<br />
the presence of God. 13 The<br />
next day Moses took his seat<br />
to serve as judge for the<br />
people, and they stood around him from morning till<br />
evening. 14 When his father-<br />
in-law saw all that Moses<br />
was doing for the people, he<br />
said, "What is this you are<br />
doing for the people? Why do<br />
you alone sit as judge, while<br />
all these people stand around you from morning till<br />
evening?" 15 Moses answered<br />
him, "Because the people come<br />
to me to seek God's will. 16<br />
Whenever they have a dispute, it<br />
is brought to me, and I decide<br />
between the parties and inform<br />
them of God's decrees and laws." 17 Moses' father-in-law replied, "What you are doing is not good. 18 You and these<br />
people who come to you will only wear yourselves out. The work is too heavy for you; you cannot handle it alone. 19<br />
Listen now to me and I will give you some advice, and may God be with you. You must be the people's representative<br />
before God and bring their disputes to him. 20 Teach them the decrees and laws, and show them the way to live and<br />
the duties they are to perform. 21 But select capable men from all the people--men who fear God, trustworthy men<br />
who hate dishonest gain--and appoint them as officials over thousands, hundreds, fifties and tens. 22 Have them<br />
serve as judges for the people at all times, but have them bring every difficult case to you; the simple cases they can<br />
decide themselves. That will make your load lighter, because they will share it with you. 23 If you do this and God so<br />
commands, you will be able to stand the strain, and all these people will go home satisfied." 24 Moses listened to his<br />
father-in-law and did everything he said. 25 He chose capable men from all Israel and made them leaders of the<br />
people, officials over thousands, hundreds, fifties and tens. 26 They served as judges for the people at all times. The<br />
difficult cases they brought to Moses, but the simple ones they decided themselves. 27 Then Moses sent his fatherin-law<br />
on his way, and Jethro returned to his own country.<br />
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The Command to Leave Horeb<br />
Deuteronomy 1<br />
1 These are the words Moses spoke to all Israel in the desert east of the Jordan--that is, in the Arabah--opposite<br />
Suph, between Paran and Tophel, Laban, Hazeroth and Dizahab. 2 (It takes eleven days to go from Horeb to Kadesh<br />
Barnea by the Mount Seir road.) 3 In the fortieth year, on the first day of the eleventh month, Moses proclaimed to the<br />
Israelites all that the LORD had commanded him concerning them. 4 This was after he had defeated Sihon king of<br />
the Amorites, who reigned in Heshbon, and at Edrei had defeated Og king of Bashan, who reigned in Ashtaroth. 5<br />
East of the Jordan in the territory of Moab, Moses began to expound this law, saying: 6 The LORD our God said to us<br />
at Horeb, "You have stayed long enough at this mountain. 7 Break camp and advance into the hill country of the<br />
Amorites; go to all the neighboring peoples in the Arabah, in the mountains, in the western foothills, in the Negev and<br />
along the coast, to the land of the Canaanites and to Lebanon, as far as the great river, the Euphrates. 8 See, I have<br />
given you this land. Go in and take possession of the land that the LORD swore he would give to your fathers--to<br />
Abraham, Isaac and Jacob--and to their descendants after them."<br />
The Appointment of Leaders<br />
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<br />
your numbers so that today you are as many as the stars in the sky. 11 May the LORD, the God of your fathers,<br />
increase you a thousand times and bless you as he has promised! 12 But how can I bear your problems and your<br />
burdens and your disputes all by myself ? 13 Choose some wise, understanding and respected men from each of<br />
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<br />
leading men of your tribes, wise and respected men, and appointed them to have authority over you--as commanders<br />
of thousands, of hundreds, of fifties and of tens and as tribal officials. 16 And I charged your judges at that time: Hear<br />
the disputes between your brothers and judge fairly, whether the case is between brother Israelites or between one of<br />
them and an alien. 17 Do not show partiality in judging; hear both small and great alike. Do not be afraid of any man,<br />
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<br />
everything you were to do.<br />
Spies Sent Out<br />
19 Then, as the LORD our God commanded us, we set out from Horeb and went toward the hill country of the<br />
Amorites through all that vast and dreadful desert that you have seen, and so we reached Kadesh Barnea. 20 Then I<br />
said to you, "You have reached the hill country of the Amorites, which the LORD our God is giving us. 21 See, the<br />
LORD your God has given you the land. Go up and take possession of it as the LORD, the God of your fathers, told<br />
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<br />
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<br />
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<br />
country, and came to the Valley of Eshcol and explored it. 25 Taking with them some of the fruit of the land, they<br />
brought it down to us and reported, "It is a good land that the LORD our God is giving us."<br />
Rebellion Against the LORD<br />
26 But you were unwilling to go up; you rebelled against the command of the LORD your God. 27 You grumbled in<br />
your tents and said, "The LORD hates us; so he brought us out of Egypt to deliver us into the hands of the Amorites<br />
to destroy us. 28 Where can we go? Our brothers have made us lose heart. They say, 'The people are stronger and<br />
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<br />
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,<br />
as he did for you in Egypt, before your very eyes, 31 and in the desert. There you saw how the LORD your God<br />
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<br />
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<br />
search out places for you to camp and to show you the way you should go. 34 When the LORD heard what you said,<br />
he was angry and solemnly swore: 35 "Not a man of this evil generation shall see the good land I swore to give your<br />
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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<br />
his feet on, because he followed the LORD wholeheartedly." 37 Because of you the LORD became angry with me<br />
also and said, "You shall not enter it, either. 38 But your assistant, Joshua son of Nun, will enter it. Encourage him,<br />
because he will lead Israel to inherit it. 39 And the little ones that you said would be taken captive, your children who<br />
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<br />
as for you, turn around and set out toward the desert along the route to the Red Sea." 41 Then you replied, "We have<br />
sinned against the LORD. We will go up and fight, as the LORD our God commanded us." So every one of you put on<br />
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<br />
fight, because I will not be with you. You will be defeated by your enemies.' " 43 So I told you, but you would not<br />
listen. You rebelled against the LORD's command and in your arrogance you marched up into the hill country. 44 The<br />
Amorites who lived in those hills came out against you; they chased you like a swarm of bees and beat you down<br />
from Seir all the way to Hormah. 45 You came back and wept before the LORD, but he paid no attention to your<br />
weeping and turned a deaf ear to you. 46 And so you stayed in Kadesh many days--all the time you spent there.<br />
Ezra Comes to Jerusalem<br />
Ezra 7<br />
1 After these things, during the reign of Artaxerxes king of Persia, Ezra son of Seraiah, the son of Azariah, the son of<br />
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<br />
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<br />
son of Eleazar, the son of Aaron the chief priest-- 6 this Ezra came up from Babylon. He was a teacher well versed in<br />
the Law of Moses, which the LORD, the God of Israel, had given. The king had granted him everything he asked, for<br />
the hand of the LORD his God was on him. 7 Some of the Israelites, including priests, Levites, singers, gatekeepers<br />
and temple servants, also came up to Jerusalem in the seventh year of King Artaxerxes. 8 Ezra arrived in Jerusalem<br />
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<br />
month, and he arrived in Jerusalem on the first day of the fifth month, for the gracious hand of his God was on him.<br />
10 For Ezra had devoted himself to the study and observance of the Law of the LORD, and to teaching its decrees<br />
and laws in Israel.<br />
King Artaxerxes' Letter to Ezra<br />
11 This is a copy of the letter King Artaxerxes had given to Ezra the priest and teacher, a man learned in matters<br />
concerning the commands and decrees of the LORD for Israel: 12 Artaxerxes, king of kings, To Ezra the priest, a<br />
teacher of the Law of the God of heaven: Greetings. 13 Now I decree that any of the Israelites in my kingdom,<br />
including priests and Levites, who wish to go to Jerusalem with you, may go. 14 You are sent by the king and his<br />
seven advisers to inquire about Judah and Jerusalem with regard to the Law of your God, which is in your hand. 15<br />
Moreover, you are to take with you the silver and gold that the king and his advisers have freely given to the God of<br />
Israel, whose dwelling is in Jerusalem, 16 together with all the silver and gold you may obtain from the province of<br />
Babylon, as well as the freewill offerings of the people and priests for the temple of their God in Jerusalem. 17 With<br />
this money be sure to buy bulls, rams and male lambs, together with their grain offerings and drink offerings, and<br />
sacrifice them on the altar of the temple of your God in Jerusalem. 18 You and your brother Jews may then do<br />
whatever seems best with the rest of the silver and gold, in accordance with the will of your God. 19 Deliver to the<br />
God of Jerusalem all the articles entrusted to you for worship in the temple of your God. 20 And anything else needed<br />
for the temple of your God that you may have occasion to supply, you may provide from the royal treasury. 21 Now I,<br />
King Artaxerxes, order all the treasurers of Trans-Euphrates to provide with diligence whatever Ezra the priest, a<br />
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<br />
wheat, a hundred baths of wine, a hundred baths of olive oil, and salt without limit. 23 Whatever the God of heaven<br />
has prescribed, let it be done with diligence for the temple of the God of heaven. Why should there be wrath against<br />
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<br />
duty on any of the priests, Levites, singers, gatekeepers, temple servants or other workers at this house of God. 25<br />
And you, Ezra, in accordance with the wisdom of your God, which you possess, appoint magistrates and judges to<br />
administer justice to all the people of Trans-Euphrates--all who know the laws of your God. And you are to teach any<br />
who do not know them. 26 Whoever does not obey the law of your God and the law of the king must surely be<br />
punished by death, banishment, confiscation of property, or imprisonment. 27 Praise be to the LORD, the God of our<br />
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<br />
who has extended his good favor to me before the king and his advisers and all the king's powerful officials. Because<br />
the hand of the LORD my God was on me, I took courage and gathered leading men from Israel to go up with me.<br />
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Table of Contents<br />
<strong>Judicial</strong> <strong>ReEngineering</strong> – Universal Legal Systems Analysis<br />
Biblical Authority<br />
I. Introduction<br />
II.<br />
III.<br />
IV.<br />
The Judiciary<br />
<strong>Judicial</strong> Independence<br />
<strong>Judicial</strong> Review<br />
V. Rule of Law<br />
VI. Rule of Higher Law<br />
VII. Political Corruption of the Judiciary<br />
VIII. Conflicts of Interest<br />
IX.<br />
<strong>Judicial</strong> Activism<br />
Attachments<br />
A. The Role of <strong>Judicial</strong> Activism<br />
B. Selective <strong>Judicial</strong> Activism<br />
C. Proper <strong>Judicial</strong> Activism<br />
Copyright © 2015 The Advocacy Foundation, Inc. All Rights Reserved.<br />
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Introduction<br />
<strong>Judicial</strong> Reform is the complete or partial political reform of a country's judiciary. <strong>Judicial</strong><br />
reform is often done as a part of wider reform of the country's political system or a legal reform.<br />
Areas of the judicial reform often include; codification of law instead of common law, moving<br />
from an inquisitorial system to an adversarial system, establishing stronger judicial independence<br />
with judicial councils or changes to appointment procedure, establishing mandatory retirement<br />
age for judges or enhancing independence of prosecution.<br />
The Judiciary (also known as the <strong>Judicial</strong> System or Court<br />
System) is the system of courts that interprets and applies the<br />
law in the name of the state. The judiciary also provides a<br />
mechanism for the resolution of disputes. Under the doctrine of<br />
the separation of powers, the judiciary generally does not make<br />
law (that is, in a plenary fashion, which is the responsibility of<br />
the legislature) or enforce law (which is the responsibility of the<br />
executive), but rather interprets law and applies it to the facts of<br />
each case. This branch of the state is often tasked with ensuring<br />
equal justice under law. It usually consists of a court of final<br />
appeal (called the "Supreme court" or "Constitutional court"),<br />
together with lower courts.<br />
In many jurisdictions the judicial branch has the power to<br />
change laws through the process of judicial review. Courts with<br />
judicial review power may annul the laws and rules of the state<br />
when it finds them incompatible with a higher norm, such as<br />
primary legislation, the provisions of the constitution or international law. Judges constitute a<br />
critical force for interpretation and implementation of a constitution, thus de facto in common<br />
law countries creating the body of constitutional law.<br />
In the US during recent decades the judiciary became active in economic issues related with<br />
economic rights established by constitution because "economics may provide insight into<br />
questions that bear on the proper legal interpretation". Since many countries with transitional<br />
political and economic systems continue treating their constitutions as abstract legal documents<br />
disengaged from the economic policy of the state, practice of judicial review of economic acts of<br />
executive and legislative branches have begun to grow.<br />
In the 1980s, the Supreme Court of India for almost a decade had been encouraging public<br />
interest litigation on behalf of the poor and oppressed by using a very broad interpretation of<br />
several articles of the Indian Constitution.<br />
Budget of the judiciary in many transitional and developing countries is almost completely<br />
controlled by the executive. The latter undermines the separation of powers, as it creates a<br />
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critical financial dependence of the judiciary. The proper national wealth distribution including<br />
the government spending on the judiciary is subject of the constitutional economics. It is<br />
important to distinguish between the two methods of corruption of the judiciary: the state<br />
(through budget planning and various privileges), and the private.<br />
The term "judiciary" is also used to refer collectively to the personnel, such as judges,<br />
magistrates and other adjudicators, who form the core of a judiciary (sometimes referred to as a<br />
"bench"), as well as the staffs who keep the system running smoothly.<br />
After The Revolution<br />
After the French Revolution, lawmakers stopped interpretation of law by judges, and the<br />
legislature was the only body permitted to interpret the law; this prohibition was later overturned<br />
by the Code Napoléon.<br />
In civil law jurisdictions at present, judges interpret the law to about the same extent as in<br />
common law jurisdictions – however it is different from the common law tradition which directly<br />
recognizes the limited power to make law. For instance, in France, the jurisprudence constante<br />
of the Court of Cassation or the Council of State is equivalent in practice with case law.<br />
However, the Louisiana Supreme Court notes the principal difference between the two legal<br />
doctrines: a single court decision can provide sufficient foundation for the common law doctrine<br />
of stare decisis, however, "a series of adjudicated cases, all in accord, form the basis for<br />
jurisprudence constante." Moreover, the Louisiana Court of Appeals has explicitly noted that<br />
jurisprudence constante is merely a secondary source of law, which cannot be authoritative and<br />
does not rise to the level of stare decisis.<br />
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The Judiciary<br />
In common law jurisdictions, courts interpret law,<br />
including constitutions, statutes, and regulations. They<br />
also make law (but in a limited sense, limited to the facts<br />
of particular cases) based upon prior case law in areas<br />
where the legislature has not made law. For instance, the<br />
tort of negligence is not derived from statute law in most<br />
common law jurisdictions. The term common law refers<br />
to this kind of law.<br />
In civil law jurisdictions, courts interpret the law, but are<br />
prohibited from creating law, and thus do not issue<br />
rulings more general than the actual case to be judged.<br />
Jurisprudence plays a similar role to case law.<br />
In the United States court system, the Supreme Court is<br />
the final authority on the interpretation of the federal<br />
Constitution and all statutes and regulations created<br />
pursuant to it, as well as the constitutionality of the<br />
various state laws; in the US federal court system, federal<br />
cases are tried in trial courts, known as the US district courts, followed by appellate courts and<br />
then the Supreme Court. State courts, which try 98% of litigation, may have different names and<br />
organization; trial courts may be called "courts of common plea", appellate courts "superior<br />
courts" or "commonwealth courts". The judicial system, whether state or federal, begins with a<br />
court of first instance, is appealed to an appellate court, and then ends at the court of last resort.<br />
In France, the final authority on the interpretation of the law is the Council of State for<br />
administrative cases, and the Court of Cassation for civil and criminal cases.<br />
In the People's Republic of China, the final authority on the interpretation of the law is the<br />
National People's Congress.<br />
Other countries such as Argentina have mixed systems that include lower courts, appeals courts,<br />
a cassation court (for criminal law) and a Supreme Court. In this system the Supreme Court is<br />
always the final authority, but criminal cases have four stages, one more than civil law does. On<br />
the court sits a total of nine justices. This number has been changed several times.<br />
Other Countries<br />
Japan’s process for selecting Judges is longer and more stringent than the process in the United<br />
States and in Mexico. Assistant judges are appointed from those who have completed their<br />
training at the "Legal Training and Research Institute" located in Wako City. Once appointeid,<br />
assistant judges still may not qualify to sit alone until they have served for five years, and have<br />
been appointed by the Supreme Court. Judges require ten years of experience in practical affairs,<br />
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public prosecutor, or practicing attorney. In the Japanese <strong>Judicial</strong> Branch there is the Supreme<br />
Court located in Japan, eight high courts, fifty district courts, fifty family courts, and 438<br />
summary courts. In difference, Mexican Supreme Court Justices are appointed by the president,<br />
and then are approved by the Senate to serve for a life term. Other justices are appointed by the<br />
Supreme Court and serve for six years. Federal courts consist of the Supreme Court with 21<br />
magistrates, 32 circuit tribunals and 98 district courts. The Supreme Court of Mexico is located<br />
in "Mexico City. Supreme Court Judges must be of ages 35 to 65 and hold a law degree during<br />
the five years preceding their nomination. In the United States Supreme Court, justices are<br />
appointed by the president and approved by the Senate. As in Mexico, justices serve for a life<br />
term or until retirement. The Supreme Court of the United States is located in "Washington<br />
D.C". The Federal court system consists of 94 federal judicial districts. The 94 districts are then<br />
divided into twelve regional circuits. The United States consist of five different types of courts<br />
that are considered subordinate to the Supreme Court, U.S bankruptcy courts, U.S Courts of<br />
Appeal for the federal circuit, U.S Court of International Trade, U.S Courts of Appeal, and U.S<br />
District Courts.<br />
The Supreme Court<br />
[The] supreme court is the highest court within the hierarchy of many legal jurisdictions. Other<br />
descriptions for such courts include court of last resort, instance court, judgment court, apex<br />
court, and highest court of appeal. Broadly speaking, the decisions of a supreme court are not<br />
subject to further review by any other court. Supreme courts typically function primarily as<br />
appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level<br />
appellate courts.<br />
However, not all highest courts are named as such. Civil law states do not tend to have singular<br />
highest courts. Additionally, the highest court in some jurisdictions is not named the "Supreme<br />
Court", for example, the High Court of Australia; this is because decisions by the High Court<br />
could formerly be appealed to the Privy Council. In a few places, the court named the "Supreme<br />
Court" is not in fact the highest court; examples include the New York Supreme Court, which is<br />
superseded by the New York Court of Appeals, and the former Supreme Court of Judicature of<br />
England and Wales.<br />
Some countries have multiple "supreme courts" whose respective jurisdictions have different<br />
geographical extents, or which are restricted to particular areas of law. In particular, countries<br />
with a federal system of government typically have both a federal supreme court (such as the<br />
Supreme Court of the United States), and supreme courts for each member state (such as the<br />
Supreme Court of Nevada), with the former having jurisdiction over the latter only to the extent<br />
that the federal constitution extends federal law over state law. Jurisdictions with a civil law<br />
system often have a hierarchy of administrative courts separate from the ordinary courts, headed<br />
by a supreme administrative court as it the case in the Netherlands. A number of jurisdictions<br />
also follow the "Austrian" model of a separate constitutional court (first developed in the<br />
Czechoslovak Constitution of 1920).<br />
Within the British Empire, the highest court within a colony was often called the "Supreme<br />
Court", even though appeals could be made from that court to the United Kingdom's Privy<br />
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Council (based in London). A number of Commonwealth jurisdictions retain this system, but<br />
many others have reconstituted their own highest court as a court of last resort, with the right of<br />
appeal to the Privy Council being abolished.<br />
In jurisdictions using a common law system, the doctrine of stare decisis applies, whereby the<br />
principles applied by the supreme court in its decisions are binding upon all lower courts; this is<br />
intended to apply a uniform interpretation and implementation of the law. In civil law<br />
jurisdictions the doctrine of stare decisis is not generally considered to apply, so the decisions of<br />
the supreme court are not necessarily binding beyond the immediate case before it; however, in<br />
practice the decisions of the supreme court usually provide a very strong precedent, or<br />
jurisprudence constante, for both itself and all lower courts.<br />
In the United States<br />
The Supreme Court of the United States, established in 1789, is the highest Federal<br />
court in the United States, with powers of judicial review first asserted in Calder v.<br />
Bull (1798) in Justice Iredell's dissenting opinion. The power was<br />
later given binding authority by Justice Marshall in Marbury v.<br />
Madison (1803). There are currently nine seats on the US<br />
Supreme Court.<br />
Each U.S. state has a state supreme<br />
court, which is the highest authority<br />
interpreting that state's law and administering that state's judiciary.<br />
Two states, Oklahoma and<br />
Texas, each have two separate<br />
highest courts that respectively<br />
specialize in criminal cases and<br />
civil cases. Although Delaware has a<br />
specialized court, the Court of<br />
Chancery, to hear<br />
cases in equity, it is<br />
not a supreme court because the<br />
Delaware Supreme Court<br />
has appellate jurisdiction over<br />
it.<br />
The titles of<br />
state supreme<br />
court vary, which can<br />
cause confusion between<br />
jurisdictions because one state may use a name for its highest court that another uses<br />
for a lower court. In New York, Maryland, and the District of Columbia the highest<br />
court is called the<br />
Court of Appeals,<br />
a name used by many states for<br />
their intermediate appellate courts. Further, trial courts of general jurisdiction in New York are<br />
called the Supreme Court, and the intermediate appellate court is called the Supreme Court,<br />
Appellate Division. In West Virginia, the highest court of the state is the Supreme Court of<br />
Appeals. In Maine and Massachusetts the highest court is styled the "Supreme <strong>Judicial</strong> Court";<br />
the last is the oldest appellate court of continuous operation in the Western Hemisphere.<br />
Page 15 of 115
Common Law Countries<br />
Australia<br />
In Australia, the High Court of Australia became the court of last resort with the passing of the<br />
Australia Act in 1986. This act abolished the last rights of appeal to the Privy Council. Each state<br />
and territory has its own Supreme Court, which is the highest court in that state/territory. This<br />
leads to some confusion among those from other jurisdictions as the term "supreme court" seems<br />
to refer to the court of last resort. The reason that the High Court of Australia is not named the<br />
"supreme court" is purely historical. Before the federation of the Australian colonies as states of<br />
Australia (in 1901), each colony had its own independent judicial system with a supreme court as<br />
the highest court physically within the colony (with a right of appeal to the Privy Council). On<br />
federation, the constitution provided for the establishment of a federal "supreme court", to be<br />
named the "High Court" which could hear appeals from the state Supreme Courts. With the<br />
exception of the Australian Capital Territory, each state's Supreme Court is divided into two<br />
divisions: the Trial Division and the Court of Appeal. Appeals from the ACT Supreme Court are<br />
heard in the High Court of Australia. The current Chief Justice of the High Court is Robert<br />
French.<br />
Bangladesh<br />
The Supreme Court of Bangladesh is created by the provisions of the Constitution of<br />
Bangladesh, 1972. There are two Divisions of the Supreme Court, i.e. (a) Appellate Division and<br />
(b) High Court Division. Appellate Division is the highest Court of Appeal and usually does not<br />
exercise the powers of a court of first instance. Whereas, the High Court Division is a Court of<br />
first instance in company and admiralty matters. The Supreme Court of Bangladesh is the<br />
protector and guardian of Bangladesh Constitution.<br />
The judgements of Appellate Division of Bangladesh Supreme Court are accessible in the<br />
Chancery Law Chronicles.<br />
Canada<br />
In Canada, the Supreme Court of Canada was established in 1875 but only became the highest<br />
court in the country in 1949 when the right of appeal to the <strong>Judicial</strong> Committee of the Privy<br />
Council was abolished. This court hears appeals of decisions made by courts of appeal from the<br />
provinces and territories and appeals of decisions made by the Federal Court of Appeal. The<br />
court's decisions are final and binding on the federal courts and the courts from all provinces and<br />
territories. The title "Supreme" can be confusing because, for example, The Supreme Court of<br />
British Columbia does not have the final say and controversial cases heard there often get<br />
appealed in higher courts - it is in fact one of the lower courts in such a process.<br />
Page 16 of 115
Hong Kong<br />
In Hong Kong, the Supreme Court of Hong Kong (now known as the High Court of Hong Kong)<br />
was the final court of appeal during its colonial times which ended with transfer of sovereignty in<br />
1997. The final adjudication power, as in any other British Colonies, rested with the <strong>Judicial</strong><br />
Committee of the Privy Council (JCPC) in London, United Kingdom. Now the power of final<br />
adjudication is vested in the Court of Final Appeal created in 1997. Under the Basic Law, its<br />
constitution, the territory remains a common law jurisdiction. Consequently, judges from other<br />
common law jurisdictions (including England and Wales) can be recruited and continue to serve<br />
in the judiciary according to Article 92 of the Basic Law. On the other hand, the power of<br />
interpretation of the Basic Law itself is vested in the Standing Committee of the National<br />
People's Congress (NPCSC) in Beijing (without retroactive effect), and the courts are authorised<br />
to interpret the Basic Law when trying cases, in accordance with Article 158 of the Basic Law.<br />
This arrangement became controversial in light of the right of abode issue in 1999, raising<br />
concerns for judicial independence.<br />
India<br />
In India, the Supreme Court of India was created on January 28, 1950 after the adoption of the<br />
Constitution. Article 141 of the Constitution of India states that the law declared by Supreme<br />
Court is to be binding on all Courts within the territory of India. It is the highest court in India<br />
and has ultimate judicial authority within India to interpret the Constitution and decide questions<br />
of national law (including local bylaws). The Supreme Court is vested with the power of judicial<br />
review to ensure the application of the rule of law. Besides, unlike most other countries, Indian<br />
Constitution places the supreme court (judiciary) co-equal with the legislative and the executive<br />
wings. Therefore the judiciary is neither superior nor inferior to the legislative or the executive.<br />
With reference to the State of Jammu and Kashmir (J&K) it would be relevant to note that, J&K<br />
has for various historical reasons a special status vis-a-vis the other states of India. Article 370 of<br />
the Constitution of India carves out certain exceptions for J&K. The Constitution of India is not<br />
fully applicable to the state of J&K. This is the effect of Article 370. The Constitution of India is<br />
applicable to the state of J&K with various modifications and exceptions. These are provided for<br />
in the Constitution (Application to Jammu and Kashmir) Order, 1954. Also, Jammu and<br />
Kashmir, unlike the other Indian states, also has its own Constitution. Although the Constitution<br />
of India is applicable to Jammu and Kashmir with numerous modifications, the Constitution<br />
(Application to Jammu and Kashmir) Order, 1954 makes Article 141 applicable to the state of<br />
J&K and hence law declared by Supreme Court is equally applicable to all courts of J&K<br />
including the High Court.<br />
Ireland<br />
The Supreme Court is the highest court in Ireland. It has authority to interpret the constitution,<br />
and strike down laws and activities of the state that it finds to be unconstitutional. It is also the<br />
highest authority in the interpretation of the law. Constitutionally it must have authority to<br />
interpret the constitution but its further appellate jurisdiction from lower courts is defined by law.<br />
The Irish Supreme Court consists of its presiding member, the Chief Justice, and seven other<br />
Page 17 of 115
judges. Judges of the Supreme Court are appointed by the President in accordance with the<br />
binding advice of the Government. The Supreme Court sits in the Four Courts in Dublin.<br />
Israel<br />
Israel's Supreme Court is at the head of the court system in the State of Israel. It is the highest<br />
judicial instance. The Supreme Court sits in Jerusalem. The area of its jurisdiction is the entire<br />
State. A ruling of the Supreme Court is binding upon every court, other than the Supreme Court<br />
itself. The Israeli supreme court is both an appellate court and the high court of justice. As an<br />
appellate court, the Supreme Court considers cases on appeal (both criminal and civil) on<br />
judgments and other decisions of the District Courts. It also considers appeals on judicial and<br />
quasi-judicial decisions of various kinds, such as matters relating to the legality of Knesset<br />
elections and disciplinary rulings of the Bar Association. As the High Court of Justice (Hebrew:<br />
Beit Mishpat Gavoha Le'Zedek הובג טפשמ תיב ;קדצל also known by its initials as Bagatz ,(ץ"גב the<br />
Supreme Court rules as a court of first instance, primarily in matters regarding the legality of<br />
decisions of State authorities: Government decisions, those of local authorities and other bodies<br />
and persons performing public functions under the law, and direct challenges to the<br />
constitutionality of laws enacted by the Knesset. The court has broad discretionary authority to<br />
rule on matters in which it considers it necessary to grant relief in the interests of justice, and<br />
which are not within the jurisdiction of another court or tribunal. The High Court of Justice<br />
grants relief through orders such as injunction, mandamus and Habeas Corpus, as well as through<br />
declaratory judgments. The Supreme Court can also sit at a further hearing on its own judgment.<br />
In a matter on which the Supreme Court has ruled - whether as a court of appeals or as the High<br />
Court of Justice - with a panel of three or more justices, it may rule at a further hearing with a<br />
panel of a larger number of justices. A further hearing may be held if the Supreme Court makes a<br />
ruling inconsistent with a previous ruling or if the Court deems that the importance, difficulty or<br />
novelty of a ruling of the Court justifies such hearing. The Supreme Court also holds the unique<br />
power of being able to order "trial de novo" (a retrial).<br />
Nauru<br />
In Nauru, there is no single highest court for all types of cases. The Supreme Court has final<br />
jurisdiction on constitutional matters, but any other case may be appealed further to the<br />
Appellate Court. In addition, an agreement between Nauru and Australia in 1976 provides for<br />
appeals from the Supreme Court of Nauru to the High Court of Australia in both criminal and<br />
civil cases, with the notable exception of constitutional cases.<br />
New Zealand<br />
In New Zealand, the right of appeal to the Privy Council was abolished following the passing of<br />
the Supreme Court Act (2003). The new Supreme Court of New Zealand was officially<br />
established at the beginning of 2004, although it did not come into operation until July. The High<br />
Court of New Zealand was until 1980 known as the Supreme Court.<br />
Page 18 of 115
Pakistan<br />
The Supreme Court has been the apex court for Pakistan since the declaration of the republic in<br />
1956 (previously the Privy Council had that function). The Supreme Court has the final say on<br />
matters of constitutional law, federal law or on matters of mixed federal and provincial<br />
competence. It can hear appeals on matters of provincial competence only if a matter of a<br />
constitutional nature is raised.<br />
With respect to Pakistan's territories (i.e. FATA, Azad Kashmir, Northern Areas and Islamabad<br />
Capital Territory (ICT)) the Supreme Court's jurisdiction is rather limited and varies from<br />
territory to territory; it can hear appeals only of a constitutional nature from FATA and Northern<br />
Areas, while ICT generally functions the same as provinces. Azad Kashmir has its own courts<br />
system and the constitution of Pakistan does not apply to it as such; appeals from Azad Kashmir<br />
relate to its relationship with Pakistan.<br />
The provinces have their own courts system, with the High Court as the apex court, except<br />
insofar as where an appeal can go to the Supreme Court as mentioned above.<br />
United Kingdom<br />
The Supreme Court of the United Kingdom was established by the Constitutional Reform Act<br />
2005 with effect from 1 October 2009 and assumed the judicial functions of the House of Lords,<br />
which include final appellate jurisdiction in civil cases throughout the UK, and in criminal cases<br />
in Northern Ireland, England and Wales. In the United Kingdom, there are separate legislatures<br />
with limited devolved powers over Wales, Northern Ireland and Scotland: devolution issues<br />
under the Scotland Act 1998, Government of Wales Act and Northern Ireland Act were<br />
transferred from the <strong>Judicial</strong> Committee of the Privy Council to the new Supreme Court by the<br />
Constitutional Reform Act.<br />
In respect of Community Law the Supreme Court is subject to the decisions of the European<br />
Court of Justice. Since there can be no appeal from the Supreme Court, there is an interlocutory<br />
procedure by which the Supreme Court may refer to the European Court questions of European<br />
law which arise in cases before it, and obtain a definitive ruling before the Supreme Court gives<br />
its judgment.<br />
The Supreme Court shares its members and accommodation at the Middlesex Guildhall with the<br />
<strong>Judicial</strong> Committee of the Privy Council which hears final appeals from certain smaller<br />
Commonwealth countries, admiralty cases, and certain appeals from the ecclesiastical courts and<br />
statutory private jurisdictions, such as professional and academic bodies.<br />
(The Constitutional Reform Act renamed the rarely cited Supreme Court of Judicature for<br />
England and Wales as the Senior Courts of England and Wales).<br />
Page 19 of 115
Civil Law Countries<br />
The Roman law and the Corpus Juris Civilis are generally held to be the historical model for<br />
civil law. From the late 18th century onwards, civil law jurisdictions began to codify their laws,<br />
most of all in civil codes.<br />
Austria<br />
In Austria, the Austrian Constitution of 1920 (based on a draft by Hans Kelsen) introduced<br />
judicial review of legislative acts for their constitutionality. This function is performed by the<br />
Constitutional Court (Verfassungsgerichtshof), which is also charged with the review of<br />
administrative acts on whether they violate constitutionally guaranteed rights. Other than that,<br />
administrative acts are reviewed by the Administrative Court (Verwaltungsgerichtshof). The<br />
Supreme Court (Oberste Gerichtshof (OGH)), stands at the top of Austria's system of "ordinary<br />
courts" (ordentliche Gerichte) as the final instance in issues of private law and criminal law.<br />
Brazil<br />
In Brazil, the Supreme Federal Tribunal is the highest court. It is both the constitutional court<br />
and the court of last resort in Brazilian law. It only reviews cases that may be unconstitutional or<br />
final habeas corpus pleads for criminal cases. It also judges, in original jurisdiction, cases<br />
involving members of congress, senators, ministers of state, members of the high courts and the<br />
President and Vice-President of the Republic. The Superior Court of Justice reviews State and<br />
Federal Circuit courts decisions for civil law and criminal law cases, when dealing with federal<br />
law or conflicting rulings. The Superior Labour Tribunal reviews cases involving labour law.<br />
The Superior Electoral Tribunal is the court of last resort of electoral law, and also oversees<br />
general elections. The Superior Military Tribunal is the highest court in matters of federal<br />
military law.<br />
Republic of China<br />
In the Republic of China, there are three different courts of last resort:<br />
Supreme Court of the Republic of China ( 中 華 民 國 最 高 法 院 ): civil and criminal cases.<br />
Supreme Administrative Court of the Republic of China ( 中 華 民 國 最 高 行 政 法 院 ):<br />
executive cases.<br />
Council of Grand Justices ( 大 法 官 會 議 ): interpretation of the Constitution, interpretation<br />
of laws and regulations, dissolution of political parties in violation of the Constitution,<br />
trial of impeachments against the President or Vice President.<br />
The Council of Grand Justices, consisting of 15 justices and mainly dealing with constitutional<br />
issues, is the counterpart of constitutional courts in some countries.<br />
All three courts are directly under the <strong>Judicial</strong> Yuan, whose president also serves as Chief Justice<br />
in the Council of Grand Justices.<br />
Page 20 of 115
Croatia<br />
In Croatia, the supreme jurisdiction is given to the Supreme Court, which secures a uniform<br />
application of laws. The Constitutional Court exists to verify constitutionality of laws and<br />
regulations, as well as decide on individual complaints on decisions on governmental bodies. It<br />
also decides on jurisdictional disputes between the legislative, executive and judicial branches.<br />
Denmark<br />
In Denmark, all ordinary courts have original jurisdiction to hear all types of cases, including<br />
cases of a constitutional or administrative nature. As a result, there exists no special<br />
constitutional court, and therefore final jurisdiction is vested with the Danish Supreme Court<br />
(Højesteret) which was established 14 February 1661 by king Frederik III.<br />
France<br />
In France, supreme appellate jurisdiction is divided among three judicial bodies:<br />
for judicial cases, i.e., civil or criminal matters: Court of Cassation (Cour de cassation)<br />
for administrative cases: Council of State (Conseil d'État)<br />
constitutional challenges of statutory laws: Constitutional Council (Conseil<br />
constitutionnel)<br />
When there is jurisdictional dispute between judicial and administrative courts: the Court of<br />
Arbitration (Tribunal des conflits), which is empanelled half from the Court of Cassation and<br />
half from the Council of State and presided over by the Minister of Justice, is called together to<br />
settle the dispute or hand down a final decision.<br />
The High Court (Haute Cour) exists only to impeach the President of the French Republic in<br />
case of "breach of his duties patently incompatible with his continuing in office". Since a<br />
constitutional amendment of 2007, the French Constitution states that the High Court is<br />
composed of all members of both Houses of Parliament. As of 2012, it has never been convened.<br />
Germany<br />
In Germany, there is no single supreme court.<br />
Final interpretation of the German Constitution, the Grundgesetz, is the task of the<br />
Bundesverfassungsgericht (Federal Constitutional Court), which is the de facto highest German<br />
court as it can declare federal and state legislation immediately ineffective, and has the power to<br />
overrule decisions of all other federal courts despite not being a regular court of appeals in the<br />
German court system.<br />
In civil and criminal cases, the Bundesgerichtshof is at the top of the hierarchy of courts. The<br />
other branches of the German judicial system each have their own appellate systems, each<br />
topped by a supreme court; these are the Bundessozialgericht for social security, the<br />
Page 21 of 115
Bundesarbeitsgericht for employment and labour, the Bundesfinanzhof for taxation, and the<br />
Bundesverwaltungsgericht for administrative law. The so-called Gemeinsamer Senat der<br />
Obersten Gerichtshöfe (Joint Senate of the Supreme Courts), is not a supreme court in itself, but<br />
an ad-hoc body that is convened only in when one supreme court intends to diverge from another<br />
supreme court's legal opinion. As the courts have well-defined areas of responsibility, this<br />
situation rarely arises, and so the Joint Senate only gathers rather rarely, and only to consider<br />
matters which are mostly definitory.<br />
The Netherlands<br />
In the Netherlands, the Supreme Court of the Netherlands is the highest. Its decisions, known as<br />
"arresten", are absolutely final. The court is banned from testing legislation against the<br />
constitution, pursuant to the principle of the sovereignty of the States-General; the court can,<br />
however, test legislation against treaties. Also, the ordinary courts in the Netherlands, including<br />
the Hoge Raad, do not deal with administrative law, which is dealt with in separate<br />
administrative courts, the highest of which is the Council of State (Raad van State)<br />
Iceland<br />
The Supreme Court of Iceland (Icelandic: Hæstiréttur Íslands, lit. Highest Court of Iceland) was<br />
founded under Act No. 22/1919 and held its first session on 16 February 1920. The Court holds<br />
the highest judicial power in Iceland, where the court system has two levels.<br />
Italy<br />
Italy follows the French system of different supreme courts.<br />
The Italian court of last resort for most disputes is the Corte Suprema di Cassazione. There is<br />
also a separate constitutional court, the Corte costituzionale, which has a duty of judicial review,<br />
and which can strike down legislation as being in conflict with the Constitution.<br />
Japan<br />
In Japan, the Supreme Court of Japan is called 最 高 裁 判 所 (Saikō-Saibansho; called 最 高 裁<br />
Saikō-Sai for short), located in Chiyoda, Tokyo, and is the highest court in Japan. It has ultimate<br />
judicial authority within Japan to interpret the Constitution and decide questions of national law<br />
(including local by-laws). It has the power of judicial review (i.e., it can declare Acts of Diet and<br />
Local Assembly, and administrative actions, unconstitutional).<br />
Luxembourg<br />
In Luxembourg, challenges on the conformity of the law to the Constitution are brought before<br />
the Cour Constitutionnelle (Constitutional Court). — The most used and common procedure to<br />
present these challenges is by way of the "question préjudicielle" (prejudicial question).<br />
The Court of last resort for civil and criminal proceedings is the "Cour de Cassation".<br />
Page 22 of 115
For administrative proceedings the highest court is the "Cour Administrative" (Administrative<br />
Court).<br />
Macau<br />
The supreme court of Macau is the Court of Final Appeal (Portuguese: Tribunal de Última<br />
Instância; Chinese: 澳 門 終 審 法 院 ).<br />
Philippines<br />
While the Philippines is generally considered a civil law nation, its Supreme Court is heavily<br />
modelled after the American Supreme Court. This can be attributed to the fact that the<br />
Philippines was colonized by both Spain and the United States, and the system of laws of both<br />
nations strongly influenced the development of Philippine laws and jurisprudence. Even as the<br />
body of Philippine laws remain mostly codified, the Philippine Civil Code expressly recognizes<br />
that decisions of the Supreme Court "form part of the law of the land", belonging to the same<br />
class as statutes. The 1987 Philippine Constitution also explicitly grants to the Supreme Court<br />
the power of judicial review over laws and executive actions. The Supreme Court is composed of<br />
1 Chief Justice and 14 Associate Justices. The court sits either en banc or in divisions, depending<br />
on the nature of the case to be decided.<br />
Portugal<br />
In Portugal, there are several supreme courts, each with a specific jurisdition:<br />
<br />
<br />
<br />
<br />
The Supreme Court of Justice (Supremo Tribunal de Justiça) - for judicial (civil and<br />
criminal) matters;<br />
The Constitutional Court (Tribunal Constitucional) - for the constitutional matters;<br />
The Supreme Administrative Court (Supremo Tribunal Administrativo) - for<br />
administrative and fiscal matters;<br />
The Court of Auditors (Tribunal de Contas) - for auditing the public expenditure.<br />
Scotland<br />
Founded by papal bull in 1532, the Court of Session is the supreme civil court of Scotland, and<br />
the High Court of Justiciary is the supreme criminal court. However, the absolute highest court<br />
(excluding criminal matters) is the Supreme Court of the United Kingdom.<br />
Spain<br />
Spanish Supreme Court is the highest court for all cases in Spain (both private and public). Only<br />
those cases related to human rights can be appealed at the Constitutional Court (which also<br />
decides about acts accordance with Spanish Constitution).<br />
Page 23 of 115
In Spain, high courts cannot create binding precedents; however, lower rank courts usually<br />
observe Supreme Court interpretations. In most private law cases, two Supreme Court<br />
judgements supporting a claim are needed to appeal at the Supreme Court.<br />
Five sections form the Spanish Supreme court:<br />
<br />
<br />
<br />
<br />
<br />
Section one judges private law cases (including commercial law).<br />
Section two decides about criminal appeals.<br />
Section three judges administrative cases and controls government normative powers.<br />
Section four is dedicated to labour law.<br />
Section five is dedicated to military justice.<br />
Sweden<br />
In Sweden, the Supreme Court and the Supreme Administrative Court respectively function as<br />
the highest courts of the land. The Supreme Administrative Court considers cases concerning<br />
disputes between individuals and administrative organs, as well as disputes among administrative<br />
organs, while the Supreme Court considers all other cases. The judges are appointed by the<br />
Government. In most cases, the Supreme Courts will only grant leave to appeal a case<br />
(prövningstillstånd) if the case involves setting a precedent in the interpretation of the law.<br />
Exceptions are issues where the Supreme Court is the court of first instance. Such cases include<br />
an application for a retrial of a criminal case in the light of new evidence, and prosecutions made<br />
against an incumbent minister of the Government for severe neglect of duty. If a lower court has<br />
to try a case which involves a question where there is no settled interpretation of the law, it can<br />
also refer the question to the relevant Supreme Court for an answer.<br />
Switzerland<br />
In Switzerland, the Federal Supreme Court of Switzerland is the final court of appeals. Due to<br />
Switzerland's system of direct democracy, it has no authority to review the constitutionality of<br />
federal statutes, but the people can strike down a proposed law by referendum. According to<br />
settled case law, however, the Court is authorised to review the compliance of all Swiss law with<br />
certain categories of international law, especially the European Convention of Human Rights.<br />
Sri Lanka<br />
In Sri Lanka, the Supreme Court of Sri Lanka was created in 1972 after the adoption of a new<br />
Constitution. The Supreme Court is the highest and final superior court of record and is<br />
empowered to exercise its powers, subject to the provisions of the Constitution. The court rulings<br />
take precedence over all lower Courts. The Sri Lanka judicial system is complex blend of both<br />
common-law and civil-law. In some cases such as capital punishment, the decision may be<br />
passed on to the President of the Republic for clemency petitions. However, when there is 2/3<br />
majority in the parliament in favour of president (as with present), the supreme court and its<br />
judges' powers become nullified as they could be fired from their positions according to the<br />
Constitution, if the president wants. Therefore, in such situations, Civil law empowerment<br />
vanishes.<br />
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South Africa<br />
In South Africa, the Supreme Court of Appeal (SCA) was created in 1994 and replaced the<br />
Appellate Division of the Supreme Court of South Africa as the highest court of appeal in nonconstitutional<br />
matters. The SAC is subordinate to the Constitutional Court, which is the highest<br />
court in matters involving the interpretation of the Constitution.<br />
In the Soviet Union<br />
In most nations with constitutions modelled after the Soviet Union, the legislature was given the<br />
power of being the court of last resort. In the People's Republic of China, the final power to<br />
interpret the law is vested in the Standing Committee of the National People's Congress<br />
(NPCSC). This power includes the power to interpret the basic laws of Hong Kong and Macau,<br />
the constitutional documents of the two special administrative regions which are common law<br />
and Portuguese-based legal system jurisdictions respectively. This power is a legislative power<br />
and not a judicial one in that an interpretation by the NPCSC does not affect cases which have<br />
already been decided.<br />
International Standards for <strong>Judicial</strong> Appointments<br />
Japan’s process for selecting Judges is longer and more stringent than the process in the United<br />
States and in Mexico. Assistant judges are appointed from those who have completed their<br />
training at the "Legal Training and Research Institute" located in Wako City. Once appointeid,<br />
assistant judges still<br />
may not qualify to<br />
sit alone until they<br />
have served for five<br />
years, and have been appointed by<br />
the Supreme Court.<br />
Judges require ten<br />
years of experience<br />
in practical affairs,<br />
public prosecutor, or practicing<br />
attorney. In the Japanese <strong>Judicial</strong><br />
Branch there is the Supreme Court<br />
located in Japan,<br />
eight high courts,<br />
fifty district courts,<br />
fifty family courts,<br />
and 438 summary<br />
courts. In difference,<br />
Mexican Supreme Court Justices are<br />
appointed by the<br />
president, and then<br />
are approved by the<br />
Senate to serve for a<br />
life term. Other justices are appointed by the Supreme Court and serve for six years. Federal<br />
courts consist of the Supreme Court with 21 magistrates, 32 circuit tribunals and 98 district<br />
courts. The Supreme Court of Mexico is located in "Mexico City. Supreme Court Judges must be<br />
of ages 35 to 65 and hold a law degree during the five years preceding their nomination. In the<br />
United States Supreme Court, justices are appointed by the president and approved by the<br />
Senate. As in Mexico, justices serve for a life term or until retirement. The Supreme Court of the<br />
United States is located in "Washington D.C". The Federal court system consists of 94 federal<br />
judicial districts. The 94 districts are then divided into twelve regional circuits. The United States<br />
consist of five different types of courts that are considered subordinate to the Supreme Court,<br />
Page 25 of 115
U.S bankruptcy courts, U.S Courts of Appeal for the federal circuit, U.S Court of International<br />
Trade, U.S Courts of Appeal, and U.S District Courts.<br />
Page 26 of 115
Page 27 of 115
<strong>Judicial</strong> Independence<br />
<strong>Judicial</strong> Independence is the concept that the<br />
judiciary needs to be kept away from the other<br />
branches of government. That is, courts should<br />
not be subject to improper influence from the<br />
other branches of government, or from private or<br />
partisan interests. <strong>Judicial</strong> Independence is vital<br />
and important to the idea of separation of<br />
powers.<br />
Different countries deal with the idea of judicial<br />
independence through different means of<br />
judicial selection, or choosing judges. One way<br />
to promote judicial independence is by granting<br />
life tenure or long tenure for judges, which<br />
ideally frees them to decide cases and make<br />
rulings according to the rule of law and judicial<br />
discretion, even if those decisions are politically unpopular or opposed by powerful interests.<br />
This concept can be traced back to 18th century England.<br />
In some countries, the ability of the judiciary to check the legislature is enhanced by the power of<br />
judicial review. This power can be used, for example, by mandating certain action when the<br />
judiciary perceives that a branch of government is refusing to perform a constitutional duty, or<br />
by declaring laws passed by the legislature unconstitutional.<br />
Constitutional economics studies issues such as the proper distribution of national wealth<br />
including government spending on the judiciary. In transitional and developing countries,<br />
spending on the judiciary may be controlled by the executive. This undermines the principle of<br />
judicial independence because it creates a financial dependence of the judiciary on the executive.<br />
It is important to distinguish between two methods of corruption of the judiciary: the state<br />
(through budget planning and privileges) being the most dangerous, and private. State corruption<br />
of the judiciary can impede the ability of businesses to optimally facilitate the growth and<br />
development of a market economy.<br />
National and International Developments<br />
The development judicial independence has been argued to involve a cycle of national law<br />
impacting international law, and international law subsequently impacting national law. [2] This is<br />
said to occur in three phases: the first phase is characterized by the domestic development of the<br />
concept of judicial independence, the second by the seeping of this concept into the international<br />
scene, and the third by the re-domestication of newly reformulated international principles of<br />
judicial independence, which may have significant and dramatic results.<br />
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A notable illustration of this cycle of impacting and reimpacting is that of the United Kingdom.<br />
The first phase occurred in England with the original conception of judicial independence in the<br />
Act of Settlement in 1701. [3] The second phase was evident when England’s concepts regarding<br />
judicial independence first entered the international scene, and from there moved into the<br />
domestic arenas of other countries; for instance, England served as the theoretical model for<br />
Montesquieu’s separation of powers doctrine [4] and the Founding Fathers of the US Constitution<br />
used England as their dominant model in formulating the Constitution’s Article III, which is the<br />
foundation of American judicial independence. [5] Other common law countries, including<br />
Canada, Australia, and India, also adopted the British model of judicial independence. [6]<br />
In recent decades the third phase of judicial independence has come to play in the UK, [7] as it has<br />
been significantly influenced by judicial independence principles developed by international<br />
human rights constitutional documents. The European Court of Human Rights (ECtHR) has had<br />
a significant impact on the conceptual analysis of judicial independence in England and<br />
Scotland. This process began in the 1990s with the ECtHR hearing UK cases, and later this<br />
process found its dramatic expression in the application of the ECtHR in the British Human<br />
Rights Act, which came into force in 2000. [8]<br />
Where British national law had previously impacted the international development of judicial<br />
independence, the British Constitutional Reform Act of 2005 [9] signaled a shift, with<br />
international law now impacting British domestic law. The Constitutional Reform Act<br />
dramatically reformed government control over the administration of justice in England and<br />
Wales; importantly, it discontinued the aberrant position of the Lord Chancellor, one of the<br />
country’s oldest constitutional offices, who was entrusted with a combination of legislative,<br />
executive, and judicial capacities. [10] The Lord Chancellor served as speaker of the Upper House<br />
of Parliament, the House of Lords; as a member of the executive branch and member of the<br />
senior cabinet; and as the head of the judiciary. Historically, the appellate function had a<br />
connection with the executive branch due to the types of cases typically heard – impeachment<br />
and the hearing of felony charges against peers. [11] The Constitutional Reform Act established<br />
new lines of demarcation between the Lord Chancellor and the judiciary, transferring all the<br />
judicial functions to the judiciary and entrusting the Lord Chancellor only with what are<br />
considered administrative and executive matters. In addition, the Constitutional Reform Act<br />
replaced the Lord Chancellor by the Lord Chief Justice as head of the judiciary, separated the<br />
judicial Appellate Committee of the House of Lords from the legislative parliament, reforming it<br />
as the Supreme Court, and creating a <strong>Judicial</strong> Appointments Commission. [12] The creation of the<br />
Supreme Court was important, for it finally separated the highest court of appeal from the House<br />
of Lords. [13]<br />
Thus, the United Kingdom, where the first phase of judicial independence began over three<br />
hundred years ago, illustrates vividly the mutual impacts of national and international law and<br />
jurisprudence in the area of judicial independence. It demonstrates a cycle of mutual normative<br />
impacts and cross-conceptual fertilizations. In this process, concepts and ideas have become<br />
enriched as they have been implemented in successive judicial and political systems, as each<br />
system has enhanced and deepened the concepts and ideas it actualized. In addition to the UK,<br />
similar developments of conceptual cross-fertilization can be seen internationally, for example in<br />
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EU law, [14] in civil law countries such as Austria, and in other common law jurisdictions<br />
including Canada. [15]<br />
International standards<br />
The International Association of <strong>Judicial</strong> Independence and World Peace produced the Mt.<br />
Scopus International Standards of <strong>Judicial</strong> Independence between 2007 and 2012. These built on<br />
the same association's New Delhi Minimum Standards on <strong>Judicial</strong> independence adopted in 1982<br />
and their Montréal Universal Declaration on the Independence of Justice in 1983. Other<br />
influences they cite for the standards include the UN Basic Principles of <strong>Judicial</strong> Independence<br />
from 1985, the Burgh House Principles of <strong>Judicial</strong> Independence in International Law (for the<br />
international judiciary), Tokyo Law Asia Principles, Council of Europe Statements on judicial<br />
independence (particularly the Recommendation of the Committee of Ministers to Member<br />
States on the independence, efficiency and role of judges), the Bangalore Principles of <strong>Judicial</strong><br />
Conduct 2002, and the American Bar Association's revision of its ethical standards for judges. [16]<br />
The Justice System<br />
In recent years, the principle of <strong>Judicial</strong> Independence has been described as one of the core<br />
values of the justice system.<br />
Contemporary Usage<br />
Under the uncodified British Constitution, there are two important conventions which help to<br />
preserve judicial independence. The first is that the Parliament of the United Kingdom does not<br />
comment on the cases which are before the court. The second is the principle of parliamentary<br />
privilege: that Members of Parliament are protected from prosecution in certain circumstances by<br />
the courts.<br />
Furthermore, the independence of the judiciary is guaranteed by the Constitutional Reform Act<br />
2005. [23] In order to try to promote the independence of the judiciary, the selection process is<br />
designed to minimize political interference. The process focuses on senior members of the<br />
judiciary rather than on politicians. Part 2 of the Tribunals, Courts and Enforcement Act 2007<br />
aims to increase diversity among the judiciary.<br />
The pay of judges is determined by an independent pay review body. It will make<br />
recommendations to the government having taken evidence from a variety of sources. The<br />
government accepts these recommendations and will traditionally implement them fully. As long<br />
as judges hold their positions in "good order," they remain in post until they wish to retire or<br />
until they reach the mandatory retirement age of 70.<br />
As of March 2008, the legal profession is self-regulating; it is responsible for implementing and<br />
enforcing its own professional standards and disciplining its own members. In this case, the<br />
bodies are the Bar Council and the Law Society. However, this self-regulation will come to an<br />
end when those bodies themselves come under the regulation of the Legal Standards Board,<br />
composed of non-lawyers, under the Legal Services Act 2007.<br />
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In The United States<br />
Federal Courts<br />
Article III of the United States Constitution establishes the federal courts as part of the federal<br />
government.<br />
The Constitution provides that federal judges, including judges of the Supreme Court of the<br />
United States, are appointed by the President "by and with the advice and consent of the Senate."<br />
Once appointed, federal judges:<br />
...both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and<br />
shall, at stated Times, receive for their Services a Compensation which shall not be diminished<br />
during their Continuance in Office.<br />
Federal judges vacate office only upon death, resignation, or impeachment and removal from<br />
office by Congress; only 13 federal judges have ever been impeached. The phrase "during good<br />
behavior" predates the Declaration of Independence. John Adams equated it with quamdiu se<br />
bene gesserint in a letter to the Boston Gazette published on 11 January 1773, [24] a phrase that<br />
first appeared in section 3 of the Act of Settlement 1701 in England.<br />
The President is free to appoint any person to the federal bench, yet typically he consults with the<br />
American Bar Association,whose Standing Committee on the Federal Judiciary rates each<br />
nominee "Well Qualified," "Qualified" or "Not Qualified."<br />
State Courts<br />
State courts deal with independence of the judiciary in many ways, and several forms of judicial<br />
selection are used for both trial courts and appellate courts (including state supreme courts),<br />
varying between states and sometimes within states. In some states, judges are elected (sometime<br />
on a partisan ballot, other times on a nonpartisan one), while in others they are appointed by the<br />
governor or state legislature.<br />
The 2000 case of Bush v. Gore, in which a majority of the Supreme Court, including some<br />
appointees of President George H. W. Bush, overruled challenges to the election of the George<br />
W. Bush then pending in the Florida Supreme Court, whose members had all been appointed by<br />
Democratic governors, is seen by many as reinforcing the need for judicial independence, both<br />
with regard to the Florida Supreme Court and the US Supreme Court. This case has focused<br />
increased attention on judicial outcomes as opposed to the traditional focus on judicial<br />
qualifications.<br />
In The Soviet Union<br />
The Judiciary of Russia interprets and applies the law of Russia. It is defined under the<br />
Constitution and law with a hierarchical structure with the Constitutional Court, Supreme Court,<br />
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and Supreme Court of Arbitration at the apex. The district courts are the primary criminal trial<br />
courts, and the regional courts are the primary appellate courts. The judiciary is governed by the<br />
All-Russian Congress of Judges and its Council of Judges, and its management is aided by the<br />
<strong>Judicial</strong> Department of the Supreme Court, the <strong>Judicial</strong> Qualification Collegia, the Ministry of<br />
Justice, and the various courts' chairpersons. And although there are many officers of the court,<br />
including jurors, the Prosecutor General remains the most powerful component of the Russian<br />
judicial system.<br />
The judiciary faces many problems and a widespread lack of confidence but has also made much<br />
progress in recent times. There have been serious violations of the accepted separation of powers<br />
doctrine, systematic attempts to undermine jury trials, problems with access to justice, problems<br />
with court infrastructure and financial support, and corruption. But the judiciary has also seen a<br />
fairer and more efficient administration, a strengthening of the rule of law, moves towards a<br />
more adversarial system, and increased utilization of the justice system under Putin.<br />
Russia has a trifurcated court system, with constitutional, ordinary, and commercial courts. The<br />
Constitutional Court of Russia is considered a separate, independent court. The district courts are<br />
the primary criminal trial courts, and the regional courts are the primary appellate courts.<br />
The ordinary courts have a four-tiered hierarchy and are responsible for civil and criminal cases:<br />
<br />
<br />
<br />
<br />
the Supreme Court of Russia,<br />
regional courts,<br />
district courts, and<br />
magistrate courts.<br />
In 1995, the courts sentenced about 1 million people for criminal offenses, and considered 3<br />
million administrative offenses and 2.5 million civil cases.<br />
Constitutional Court<br />
The Constitutional Court of Russia (Конституционный суд<br />
Российской Федерации) is responsible for cases<br />
concerning conformity with the Constitution, judicial<br />
disputes between 2 or more federal bodies, between a federal<br />
body and a member of the Federation, and between members<br />
of the Federation. [2] As such, it practices "constitutional<br />
review" (as differentiated from judicial review) and decides<br />
whether federal laws, presidential decrees and directives,<br />
and local constitutions, charters, and laws comply with the<br />
federal constitution, as well as treaties between the national government and a regional<br />
governments and between regional governments.<br />
It is composed of 19 judges, and may sit in plenary sessions but is otherwise divided into 2<br />
chambers. [2] The Constitutional Court consists of two chambers with 10 and 9 judges<br />
Page 32 of 115
espectively. The Chairman presides over one of the chambers, the Deputy Chairman presides<br />
over the other chamber.<br />
Constitutionality of laws, disputes concerning competence of governmental agencies,<br />
impeachment of the President of Russia, and Constitutional Court's proposals of legislation must<br />
be dealt with by the plenary session. The Constitutional Court may also submit to the plenary<br />
session any other issue at its discretion.<br />
In general, the court hears cases referred by the President, the Federation Council, the State<br />
Duma, one-fifth of the members of either chamber of the Federal Assembly, the Government, the<br />
Supreme Court, or other bodies of legislative or executive authority. [2] It also hears complains by<br />
citizens of allegations of constitutional rights violations. [2]<br />
Supreme Court<br />
The Supreme Court of Russia (Верховный суд Российской<br />
Федерации) is the highest court, and supervises inferior<br />
courts of general jurisdiction. It occasionally sits as a court<br />
of first instance in cases where important interests of state<br />
are at issue; in this case it normally consists of a judge and a<br />
jury, but occasionally consists of three judges.<br />
There are 115 members of the Supreme Court. At plenary<br />
sessions the Supreme Court studies the judicial decisions of<br />
lower courts on various topics and adopts resolutions, which<br />
establish recommendations on the interpretation of particular<br />
provisions of law for lower courts for uniform application.<br />
The Presidium of the Russian Supreme Court (Президиум<br />
Верховного Суда Российской Федерации) represents<br />
Russia's final court of appeal. The Presidium consists of<br />
thirteen judges: the Chairman of the Supreme Court, its first<br />
deputy chairman, its six deputy chairmen and five other<br />
Supreme Court judges. Only the Prosecutor General has the right to appeal to the Presidium, and<br />
as a result, very few criminal cases reviewed by the three-judge panels of the Supreme Court<br />
make it to the Presidium. Only 0.4% of criminal cases in 1998 ended with an acquittal in the<br />
Presidium.<br />
The court is divided into several chambers or collegia (коллегия), and each chamber normally<br />
sits with three judges:<br />
<br />
<br />
<br />
<br />
civil (коллегии по гражданским);<br />
criminal (коллегии по уголовным);<br />
military (Военной коллегии);<br />
administrative (коллегии по административным); and<br />
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appeals (Апелляционная коллегия; formerly the cassation panel or Кассационная<br />
коллегия), which can review decisions of the other chambers.<br />
There are several entities attached to the Supreme Court. The Academic Consultative Council<br />
(Научно-консультативный совет при Верховном Суде Российской Федерации) assists the<br />
court in various legal and academic matters and comprises members of the Supreme Court itself,<br />
academics, practicing lawyers, and law enforcement officers. The members of the Academic<br />
Consultative Council are elected at plenary sessions of the Supreme Court. The <strong>Judicial</strong><br />
Department is responsible for administration of the courts.<br />
Regional Courts<br />
Regional courts (also called kray courts and city courts) are the courts at the regional level,<br />
though are not all named as such. This includes the supreme courts of the Republics of Russia,<br />
courts of the krais (territories; краевой суд or kray courts), courts of the oblasts (regions;<br />
областной суд), city courts of the federal cities of Russia (Moscow and Saint Petersburg), courts<br />
of the autonomous oblasts, and courts of the autonomous okrugs.<br />
The courts sit as both courts of first instance and appellate courts. As courts of first instance, they<br />
hear more complex civil cases and serious criminal cases. A judge and a jury, or alternatively 3<br />
judges, hear these cases. As appellate courts, they hear decisions of district courts that have not<br />
yet entered into force, and consist of 3 judges.<br />
District Courts<br />
District courts (районный суд or городской суд; also called<br />
rayon or raion courts), which were called People's Courts<br />
until 1996, are primarily courts of first instance but<br />
sometimes hear appeals from magistrate courts. [7] They are<br />
formed in areas (районах or rayons), urban areas (районах<br />
в городах), and cities (городах). Decisions of the court are<br />
appealed to the regional court.<br />
As courts of first instance, they handle criminal cases where imprisonment is for more than 3<br />
years, and consist of 1 judge and a jury where required. As courts of appeal from decisions of the<br />
magistrate courts consisting of 1 justice of the peace, they consist of 1 judge and retry the case.<br />
Arbitration Courts<br />
Arbitration courts (арбитражный суд; also called arbitrazh or commercial courts) hear cases<br />
dealing with a wide matter of contractual issues, such as rights of ownership, contract changes,<br />
performance of obligations, loans, bank accounts, and bankruptcy. They operate independently<br />
of the other courts. The Supreme Court of Arbitration of Russia (also called the Supreme<br />
Commercial Court, the Supreme Arbitrazh Court, or the Supreme Arbitration Court) is the<br />
highest such court, and consists of 1 chairman and 4 deputy chairmen.<br />
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Magistrate Courts<br />
Magistrate courts (мировой суд; also called Justices of the Peace Courts) handle criminal cases<br />
where imprisonment is for less than three years such as petty hooliganism, public drunkenness,<br />
and serious traffic violations of a non-criminal nature, minor civil cases such as simple divorces,<br />
some property cases, disputes over land, and some labor cases, as well as some federal<br />
administrative law cases. The magistrate courts were expected to hear two-thirds of all civil<br />
cases and close to 100,000 criminal cases. It consists of one magistrate or justice of the peace.<br />
Pursuant to the 2002 Federal Law on Organs of the <strong>Judicial</strong><br />
Community, which is the legal basis for the judicial organs<br />
of self-government, the All-Russian Congress of Judges is<br />
the supreme body of the judiciary. [10] The Congress elects<br />
the members of the Council of Judges, the self-government<br />
body of the judiciary.<br />
The <strong>Judicial</strong> Department of the Supreme Court of Russia is<br />
responsible for administration of the courts, such as selection and training of judicial candidates,<br />
working with law institutes, and qualifications of judges and other court officers. It is expected to<br />
enhance the independence of the judicial branch. It also supports the Council of Judges and the<br />
Supreme Qualifying Collegium.<br />
<strong>Judicial</strong> Qualification Collegia are bodies of judicial self-regulation that were established at the<br />
regional (<strong>Judicial</strong> Qualification Collegia) and national (Supreme Qualification Collegium) levels.<br />
They play a key role in the appointment, promotion and dismissal of judges.<br />
Some judges serve as a court chairperson. The court chairperson is solely responsible for the<br />
allocation of cases to judges, has considerable powers in the matters of appointment, and makes<br />
the initial recommendation for disciplinary measures, in particular dismissal.<br />
Court Officers<br />
Judges are appointed by the Federation Council, and serve for life. Candidates are recommended<br />
by the Qualification Collegia / Supreme Qualification Collegium to the President, who in turn<br />
recommends candidates to the Federation Council.<br />
The judges of the Constitutional Court are nominated by the President and appointed by the<br />
Federation Council for 12 years, and the judges must be at least 40 years old and must retire at<br />
70 years old. The also must have served as a lawyer for at least 15 years and have a "recognized<br />
high qualification" (quotation from Constitutional Court Act) in law.<br />
The Russian Minister of Justice is responsible for appointing judges to regional and city courts;<br />
however, in practice, many appointments below the national level still are made by the chief<br />
executives of subnational jurisdictions.<br />
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Judges of the district courts are appointed by the President. A candidate must be at least 25 years<br />
old, is expected to have received a higher legal education (commonly a specialist degree), have<br />
at least 5 years of experience in the legal profession, and pass an examination from the Ministry<br />
of Justice.<br />
Justices of the peace are usually appointed by the regional legislature, but may also be elected.<br />
Justices of the peace require most of the same qualifications.<br />
Prosecutors<br />
The Prosecutor General of Russia is the highest prosecutor in Russia, and both he and his office<br />
are independent from the executive, legislative and judicial branches of power. The Prosecutor<br />
General remains the most powerful component of the Russian judicial system.<br />
The Prosecutor General is entrusted with:<br />
1. prosecution in court on behalf of the State;<br />
2. representation of the interests of a citizen or of the State in court in cases determined by<br />
law;<br />
3. supervision of the observance of laws by bodies that conduct detective and search<br />
activity, inquiry and pre-trial investigation;<br />
4. supervision of the observance of laws in the execution of judicial decisions in criminal<br />
cases, and also in the application of other measures of coercion related to the restraint of<br />
personal liberty of citizens.<br />
The Investigative Committee of Russia, sometimes described as the "Russian FBI", is the main<br />
federal investigating authority in Russia, formed in place of the Investigative Committee of the<br />
Prosecutor General in 2011.<br />
The Prosecutor General is nominated by the President of Russia and appointed by the majority of<br />
Federation Council for a term of five years. If the nomination fails, the President must nominate<br />
another candidate within 30 days. The resignation of the Prosecutor General before the end of his<br />
term should be approved by both a majority of Federation Council and the President.<br />
Advocates<br />
The Russian legal profession is unregulated, but there have been moves towards unification and<br />
regulation recently. Anyone with a legal education can practice law, but only a member of the<br />
Advokatura (Адвокатура) may practice before a criminal court. Legal education has traditionally<br />
begun with the specialist degree in law (специалист по правоведению). An "advocate" is an<br />
attorney who has demonstrated qualification and belongs to an organizational structure of<br />
advocates specified by law, known as being "called to the bar" in commonwealth countries.<br />
An examination is administered by the qualifications commission of a court for admission to its<br />
Advokatura. To sit for the exam, one must have a higher legal education (commonly a specialist<br />
degree) and either two years of experience in legal work or a training program in a law firm. The<br />
Page 36 of 115
exam is both written and oral, but the main test is oral. The qualifications commission is<br />
composed of seven advocates, two judges, two representatives of the regional legislature, and<br />
two representatives of the Ministry of Justice.<br />
In 1988 there were 25,000 lawyers, [19] and in 2002 there were 47,000 defense lawyers in all of<br />
Russia.<br />
Jurors<br />
A juror must be 25 years old, legally competent, and without a criminal record.<br />
Regulation of Russian Law<br />
The judiciary is primarily regulated by the Constitution of Russia, the Code of Criminal<br />
Procedure, and the 1996 Federal Constitutional Law on the <strong>Judicial</strong> System of the Russian<br />
Federation. The Constitution states that the judicial branch is independent of the legislative and<br />
executive branches, but there have been serious violations of the accepted separation of powers<br />
doctrine.<br />
There is no usage of precedent, as used in common law legal systems. As such, the law on appeal<br />
may depend on the composition of the chamber deciding the appeal. A chamber normally<br />
consists of 3 judges, out of the dozens of judges within the court (19 in the Constitutional Court,<br />
115 in the Supreme Court). Without the legal principle of stare decisis, for each case a chamber<br />
may come to a different, even contradictory, conclusion, even compared to chambers within the<br />
same session. If they come to relatively consistent decisions, those in civil law legal systems call<br />
this jurisprudence constante.<br />
Criminal Procedure<br />
Everyone has the right of legal assistance. The accused have the right to a defense lawyer from<br />
the time they are detained, put in custody, charged, or declared a suspect. According to the 2001<br />
Code of Criminal Procedure, defense lawyers can participate in investigations with the consent<br />
of the prosecutor, meet privately with a client, collect evidence independently of the prosecutor,<br />
identify defense witnesses, present expert witnesses, be present for all court procedures, access to<br />
the prosecutions evidence after the investigation, and to file appeals regarding court procedures.<br />
For serious and specific crimes, the accused have the option of a jury trial consisting of 12<br />
jurors. [8] The crimes that may be tried by a jury are murder, kidnapping, rape with aggravating<br />
circumstances, child trafficking, gangsterism, large-scale bribery, treason, terrorism, public calls<br />
for violent change in the constitutional system or for the seizure of power, and select other<br />
crimes against the state. The Constitution of Russia stipulates that, until the abolition of the death<br />
penalty, all defendants in a case that may result in a death sentence are entitled to a jury trial.<br />
Jurors are selected by the prosecution and defense from a list of 30-40 eligible candidates. They<br />
are similar to common law juries, and unlike lay judges, in that they sit separately from the<br />
judges and decide questions of fact alone while the judge determines questions of law. They<br />
Page 37 of 115
must return unanimous verdicts during the first 3 hours of deliberation, but may return majority<br />
verdicts after that, with 6 jurors being enough to acquit. They may also request that the judge<br />
show leniency in sentencing.<br />
Main Criticism<br />
The arbitrazh courts have been singled out as particularly effective in dealing with business<br />
issues. [9] Also, the number of people seeking assistance of the judicial system has increased from<br />
1 million under Yeltsin to 6 million under Putin.<br />
However, Transparency International found that 78% of respondents reported they did not expect<br />
to find justice in the courts. Both public perception and comments from senior judges point to<br />
bribery as prevalent at the trial court level.<br />
There have been serious violations of the accepted separation of powers doctrine. Constitutional<br />
Court Judge and Council of Judges member Vladimir Yaroslavtsev, in a 2009 interview with the<br />
Spanish newspaper El País, claimed that the presidential executive office and security services<br />
had undermined judicial independence in Russia. Constitutional Court Judge Anatoly Kononov,<br />
who had frequently dissented from decisions taken by the majority of the court, in his interview<br />
to Sobesednik supported Yaroslavtsev, claiming that there was no independent judiciary in<br />
Russia.<br />
There have been accusations of systematic attempts to undermine jury trials, including juror<br />
intimidation and bribery, and systematic trial delays. The number of jury trials remains small, at<br />
about 600 per year, out of about 1 million trials. Lawmakers are continuously chipping away at<br />
what types of criminal offenses merit a jury trial. Juries have granted acquittals in 15-20% of<br />
cases, compared with less than 1% in cases decided by judges. Juries may be dismissed and<br />
skeptical juries have been dismissed on the verge of verdicts, and acquittals are frequently<br />
overturned by higher courts.<br />
Compared to other industrialized nations, Russia has historically had a small number of lawyers<br />
in relation to its population. In 2002 there were 47,000 defense lawyers in all of Russia, while the<br />
courts sentenced about 1 million people for criminal offenses and considered 3 million<br />
administrative offenses and 2.5 million civil cases, and the Russian Census of 2002 put the<br />
resident population at more than 145 million people. For a comparison to the United States, the<br />
number of active lawyers practicing before the judiciary of California as of December 2012 was<br />
more than 179,000, while the 2010 United States Census put the California population at more<br />
than 37 million people.<br />
The court chairperson has sole discretion for allocation of court cases, and there is no systematic<br />
procedure for allocation based on objective criteria. There have been reports where the<br />
chairperson always assigns sensitive cases to particular judges or transfers cases to another judge<br />
during an ongoing trial.<br />
There have been allegations of corruption concerning the oral exam required for admission to the<br />
Advokatura, known as being "called to the bar" in commonwealth countries.<br />
Page 38 of 115
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<strong>Judicial</strong> Review<br />
<strong>Judicial</strong> Review is the doctrine under which legislative and executive actions are subject to<br />
review by the judiciary. A court with judicial review power may invalidate laws and decisions<br />
that are incompatible with a higher authority, such as the terms of a written<br />
constitution.<br />
<strong>Judicial</strong> review is one of the checks and balances in the separation of<br />
powers: the<br />
power of the judiciary to supervise the legislative<br />
and executive branches. The<br />
doctrine varies between<br />
jurisdictions, so the procedure<br />
and scope of judicial review<br />
may differ between and within<br />
countries.<br />
<strong>Judicial</strong> review can be understood in the context of two distinct—but parallel—legal systems,<br />
civil law and common law, and also by two distinct theories of democracy regarding the manner<br />
in which government should be organized with respect to the principles and doctrines of<br />
legislative supremacy and the separation of powers.<br />
First, two distinct legal systems, civil law and common law, have different views about judicial<br />
review. Common-law judges are seen as sources of law, capable of creating new legal principles,<br />
and also capable of rejecting legal principles that are no longer valid. In the civil-law tradition,<br />
judges are seen as those who apply the law, with no power to create (or destroy) legal principles.<br />
Secondly, the idea of separation of powers is another theory about how a democratic society's<br />
government should be organized. In contrast to legislative supremacy, the idea of separation of<br />
powers was first introduced by Montesquieu; it was later institutionalized in the United States by<br />
the Supreme Court ruling in Marbury v. Madison under the court of John Marshall. Separation of<br />
powers is based on the idea that no branch of government should be able to exert power over any<br />
other branch without due process of law; each branch of government should have a check on the<br />
powers of the other branches of government, thus creating a regulative balance among all<br />
branches of government. The key to this idea is checks and balances. In the United States,<br />
judicial review is considered a key check on the powers of the other two branches of government<br />
by the judiciary, although the power itself is not granted by the Constitution.<br />
Differences in organizing "democratic" societies led to different views regarding judicial review,<br />
with societies based on common law and those stressing a separation of powers being the most<br />
likely to utilize judicial review. Nevertheless, many countries whose legal systems are based on<br />
the idea of legislative supremacy have learned the possible dangers and limitations of entrusting<br />
power exclusively to the legislative branch of government. Many countries with civil-law<br />
systems have adopted a form of judicial review to stem the tyranny of the majority.<br />
Another reason why judicial review should be understood in the context of both the development<br />
of two distinct legal systems (civil law and common law) and two theories of democracy<br />
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(legislative supremacy and separation of powers) is that some countries with common-law<br />
systems do not have judicial review of primary legislation. Though a common-law system is<br />
present in the United Kingdom, the country still has a strong attachment to the idea of legislative<br />
supremacy; consequently, judges in the United Kingdom do not have the power to strike down<br />
primary legislation. However, since the United Kingdom became a member of the European<br />
Union there has been tension between its tendency toward legislative supremacy and the EU's<br />
legal system, which specifically gives the Court of Justice of the European Union the power of<br />
judicial review.<br />
<strong>Judicial</strong> Review of Administrative Acts<br />
Most modern legal systems allow the courts to review administrative acts (individual decisions<br />
of a public body, such as a decision to grant a subsidy or to withdraw a residence permit). In<br />
most systems, this also includes review of secondary legislation (legally-enforceable rules of<br />
general applicability adopted by administrative bodies). Some countries (notably France and<br />
Germany) have implemented a system of administrative courts which are charged with resolving<br />
disputes between members of the public and the administration. In other countries (including the<br />
United States, Scotland and the Netherlands), judicial review is carried out by regular civil courts<br />
although it may be delegated to specialized panels within these courts (such as the<br />
Administrative Court within the High Court of England and Wales). The United States employs<br />
a mixed system in which some administrative decisions are reviewed by the United States district<br />
courts (which are the general trial courts), some are reviewed directly by the United States courts<br />
of appeals and others are reviewed by specialized tribunals such as the United States Court of<br />
Appeals for Veterans Claims (which, despite its name, is not technically part of the federal<br />
judicial branch). It is quite common that before a request for judicial review of an administrative<br />
act is filed with a court, certain preliminary conditions (such as a complaint to the authority<br />
itself) must be fulfilled. In most countries, the courts apply special procedures in administrative<br />
cases.<br />
<strong>Judicial</strong> Review of Primary Legislation<br />
There are three broad approaches to judicial review of the constitutionality of primary<br />
legislation—that is, laws passed directly by an elected legislature. Some countries do not permit<br />
a review of the validity of primary legislation. In the United Kingdom, statutes cannot be set<br />
aside under the doctrine of parliamentary sovereignty. Another example is the Netherlands,<br />
where the constitution expressly forbids the courts to rule on the question of constitutionality of<br />
primary legislation.<br />
Review by General Courts<br />
In the United States, federal and state courts (at all levels, both appellate and trial) are able to<br />
review and declare the "constitutionality", or agreement with the Constitution (or lack thereof) of<br />
legislation that is relevant to any case properly within their jurisdiction. In American legal<br />
language, "judicial review" refers primarily to the adjudication of constitutionality of statutes,<br />
especially by the Supreme Court of the United States. This is commonly held to have been<br />
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established in the case of Marbury v. Madison, which was argued before the Supreme Court in<br />
1803. A similar system was also adopted in Australia.<br />
Review by A Specialized Court<br />
In 1920, Czechoslovakia adopted a system of judicial review by a specialized court, the<br />
Constitutional Court as written by Hans Kelsen, a leading jurist of the time. This system was<br />
later adopted by Austria and became known as the Austrian System, also under the primary<br />
authorship of Hans Kelsen, being emulated by a number of other countries. In these systems,<br />
other courts are not competent to question the constitutionality of primary legislation; they often<br />
may, however, initiate the process of review by the Constitutional Court.<br />
Russia adopts a mixed model since (as in the US) courts at all levels, both federal and state, are<br />
empowered to review primary legislation and declare its constitutionality; as in the Czech<br />
Republic, there is a constitutional court in charge of reviewing the constitutionality of primary<br />
legislation. The difference is that in the first case, the decision about the laws adequacy to the<br />
Russian Constitution only binds the parties to the lawsuit; in the second, the Court's decision<br />
must be followed by judges and government officials at all levels.<br />
Legal Reformation<br />
Law Reform or Legal Reform is the process of examining existing laws, and advocating and<br />
implementing changes in a legal system, usually with the aim of enhancing justice or efficiency.<br />
Intimately related are law reform bodies or law commissions, which are organizations set up to<br />
facilitate law reform. Law reform bodies carry out research and recommend ways to simplify and<br />
modernize the law. Many law reform bodies are statutory corporations set up by governments,<br />
although they are usually independent from government control, providing intellectual<br />
independence to accurately reflect and report on how the law should progress.<br />
Law reform activities can include preparation and presentation of cases in court in order to<br />
change the common law; lobbying of government officials in order to change legislation; and<br />
research or writing that helps to establish an empirical basis for other law reform activities.<br />
The four main methods in reforming law are repeal (get rid of a law), creation of new law,<br />
consolidation (change existing law) and codification.<br />
The expression "law reform" is used in a number of senses and some of these are close to being<br />
wholly incompatible with each other.<br />
In the Law Reform Commission Act 1975, the expression "reform" includes, in relation to the<br />
law or a branch of the law, its development, its codification (including in particular its<br />
simplification and modernisation) and the revision and consolidation of statute law, and kindred<br />
words must be construed accordingly.<br />
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Correlation with <strong>Judicial</strong> Reform<br />
<strong>Judicial</strong> reform is the complete or partial political reform of a country's judiciary. <strong>Judicial</strong> reform<br />
is often done as a part of wider reform of the country's political system or a legal reform. The<br />
President of the Constitutional Court of the Russian Federation, Valery Zorkin, gives in his<br />
article, "Twelve Theseses on Legal Reform in Russia", first published in Russian magazine<br />
«Legislation and Economics», N. 2, 2004 an explained correlation between legal and judicial<br />
reform: "Complete legal reform should normally include not only judicial reform, but also<br />
reform of various aspects of the structural system and content of legislation, legal education,<br />
legal awareness by the population, and also the corporate consciousness of the whole legal<br />
community. <strong>Judicial</strong> reform usually aims to improve such things as law courts, procuracies,<br />
advocacy (bar), inquest, executory processes, and record keeping.".<br />
Economic Considerations<br />
Legal reform can be the ―driver‖ for all other reforms, including reform of the economy. A true<br />
market economy cannot be created without ensuring both full guarantees of private property and<br />
transparent predictability for entrepreneurial activity, on the one hand; and sufficiently<br />
reasonable legal control over economic processes, on the other hand. Legal reform should be an<br />
integral part of any on-going reform process. Legal reform is a tool for implementing necessary<br />
reforms, to balance competing interests, create a dynamic and sustainable economy, and build a<br />
sustainable civil society. During last decades the judiciary became active in economic issues<br />
related with economic rights established by constitution because "economics may provide insight<br />
into questions that bear on the proper legal interpretation". [4] Since many a country with a<br />
transitional political and economic system continues treating its constitution as an abstract legal<br />
document disengaged from the economic policy of the state, practice of judicial review of<br />
economic acts of executive and legislative branches became to grow.<br />
The budget of the judiciary in many transitional and developing countries is completely<br />
controlled by the executive. The latter undermines the separation of powers, as it creates a<br />
critical financial dependence of the judiciary. The proper national wealth distribution including<br />
the government spending on the judiciary is subject of the constitutional economics. It is<br />
important to distinguish between the two methods of corruption of the judiciary: the state<br />
(through budget planning and various privileges), and the private.<br />
The US Model<br />
<strong>Judicial</strong> review within the United States is the<br />
ability of a court to examine and decide if a<br />
statute, treaty or administrative regulation<br />
contradicts or violates the provisions of existing<br />
law, a State Constitution, or ultimately the United<br />
States Constitution. While the U.S. Constitution<br />
does not explicitly define a "power" of judicial<br />
review, the authority for judicial review in the<br />
United States has been inferred from the<br />
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structure, provisions, and history of the Constitution.<br />
Two landmark decisions by the U.S. Supreme Court served to confirm the inferred constitutional<br />
authority for judicial review in the United States: In 1796, Hylton v. United States was the first<br />
case decided by the Supreme Court involving a direct challenge to the constitutionality of an act<br />
of Congress, the Carriage Act of 1794 which imposed a "carriage tax". The Court engaged in the<br />
process of judicial review by examining the plaintiff's claim that the carriage tax was<br />
unconstitutional. After review, the Supreme Court decided the Carriage Act was not<br />
unconstitutional. In 1803, Marbury v. Madison was the first Supreme Court case where the Court<br />
asserted its authority for judicial review to strike down a law as unconstitutional. At the end of<br />
his opinion in this decision, Chief Justice John Marshall maintained that the Supreme Court's<br />
responsibility to overturn unconstitutional legislation was a necessary consequence of their<br />
sworn oath of office to uphold the Constitution as instructed in Article Six of the Constitution.<br />
As of 2014, the United States Supreme Court has held 176 Acts of the U.S. Congress<br />
unconstitutional.<br />
Constitutional Authorization<br />
The Constitution does not expressly provide that the federal judiciary has the power of judicial<br />
review. Rather, the power to declare laws unconstitutional has been deemed an implied power,<br />
derived from Article III and Article VI.<br />
The provisions relating to the federal judicial power in Article III state:<br />
“<br />
The<br />
judicial power of the United States, shall be vested in one<br />
Supreme Court, and in such inferior courts as the Congress may from<br />
time to time ordain and establish. . . . The judicial power shall extend<br />
to all cases, in law and equity, arising under this Constitution, the<br />
laws of the United States, and treaties made, or which shall be made,<br />
under their authority. . . . In all cases affecting ambassadors, other<br />
public ministers and consuls, and those in which a state shall be party,<br />
the Supreme Court shall have original jurisdiction. In all the other<br />
cases before mentioned, the Supreme Court shall have appellate<br />
jurisdiction, both as to law and fact, with such exceptions, and under<br />
such regulations as the Congress shall make.<br />
”<br />
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The Supremacy Clause of Article VI states:<br />
“<br />
This<br />
Constitution, and the Laws of the United States which shall be<br />
made in Pursuance thereof; and all Treaties made, or which shall be<br />
made, under the Authority of the United States, shall be the supreme<br />
Law of the Land; and the Judges in every State shall be bound<br />
thereby, any Thing in the Constitution or Laws of any State to the<br />
Contrary notwithstanding. . . . [A]ll executive and judicial Officers,<br />
both of the United States and of the several States, shall be bound by<br />
Oath or Affirmation, to support this Constitution.<br />
”<br />
The power of judicial review has been implied from these provisions based on the following<br />
reasoning. It is the inherent duty of the courts to determine the applicable law in any given case.<br />
The Supremacy Clause says "[t]his Constitution" is the "supreme law of the land." The<br />
Constitution therefore is the fundamental law of the United States. Federal statutes are the law of<br />
the land only when they are "made in pursuance" of the Constitution. State constitutions and<br />
statutes are valid only if they are consistent with the Constitution. Any law contrary to the<br />
Constitution is void. The federal judicial power extends to all cases "arising under this<br />
Constitution." As part of their inherent duty to determine the law, the federal courts have the<br />
duty to interpret and apply the Constitution and to decide whether a federal or state statute<br />
conflicts with the Constitution. All judges are bound to follow the Constitution. If there is a<br />
conflict, the federal courts have a duty to follow the Constitution and to treat the conflicting<br />
statute as unenforceable. The Supreme Court has final appellate jurisdiction in all cases arising<br />
under the Constitution, so the Supreme Court has the ultimate authority to decide whether<br />
statutes are consistent with the Constitution.<br />
The Constitutional Convention<br />
During the debates at the Constitutional Convention, the Founding Fathers made a number of<br />
references to the concept of judicial review. The greatest number of these references occurred<br />
during the discussion of the proposal known as the Virginia Plan. The Virginia Plan included a<br />
"council of revision" that would have examined proposed new federal laws and would have<br />
accepted or rejected them, similar to today's presidential veto. The "council of revision" would<br />
have included the President along with some federal judges. Several delegates objected to the<br />
inclusion of federal judges on the council of revision. They argued the federal judiciary, through<br />
its power to declare laws unconstitutional, already had the opportunity to protect against<br />
legislative encroachment, and the judiciary did not need a second way to negate laws by<br />
participating in the council of revision. For example, Elbridge Gerry said federal judges "would<br />
have a sufficient check against encroachments on their own department by their exposition of the<br />
laws, which involved a power of deciding on their constitutionality. In some states the judges<br />
had actually set aside laws, as being against the constitution. This was done too with general<br />
approbation." Luther Martin said: "[A]s to the constitutionality of laws, that point will come<br />
before the judges in their official character. In this character they have a negative on the laws.<br />
Join them with the executive in the revision, and they will have a double negative." These and<br />
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other similar comments by the delegates indicated that the federal courts would have the power<br />
of judicial review.<br />
Other delegates argued that if federal judges were involved in the law-making process through<br />
participation on the council of revision, their objectivity as judges in later deciding on the<br />
constitutionality of those laws could be impaired. These comments indicated a belief that the<br />
federal courts would have the power to declare laws unconstitutional.<br />
At several other points in the debates at the Constitutional Convention, delegates made<br />
comments indicating their belief that under the Constitution, federal judges would have the<br />
power of judicial review. For example, George Mason said that federal judges "could declare an<br />
unconstitutional law void." James Madison said: "A law violating a constitution established by<br />
the people themselves, would be considered by the Judges as null & void."<br />
In all, fifteen delegates from nine states made comments regarding the power of the federal<br />
courts to review the constitutionality of laws. All but two of them supported the idea that the<br />
federal courts would have the power of judicial review. Some delegates to the Constitutional<br />
Convention did not speak about judicial review during the Convention, but did speak about it<br />
before or after the Convention. Including these additional comments by Convention delegates,<br />
scholars have found that twenty-five or twenty-six of the Convention delegates made comments<br />
indicating support for judicial review, while three to six delegates opposed judicial review. One<br />
review of the debates and voting records of the convention counted as many as forty delegates<br />
who supported judicial review, with four or five opposed.<br />
In their comments relating to judicial review, the framers indicated that the power of judges to<br />
declare laws unconstitutional was part of the system of separation of powers. The framers stated<br />
that the courts' power to declare laws unconstitutional would provide a check on the legislature,<br />
protecting against excessive exercise of legislative power.<br />
The State Ratification Debates<br />
<strong>Judicial</strong> review was discussed in at least seven of the thirteen state ratifying conventions, and<br />
was mentioned by almost two dozen delegates. In each of these conventions, delegates asserted<br />
that the proposed Constitution would allow the courts to exercise judicial review. There is no<br />
record of any delegate to a state ratifying convention who indicated that the federal courts would<br />
not have the power of judicial review.<br />
For example, James Wilson asserted in the Pennsylvania ratifying convention that federal judges<br />
would exercise judicial review: "If a law should be made inconsistent with those powers vested<br />
by this instrument in Congress, the judges, as a consequence of their independence, and the<br />
particular powers of government being defined, will declare such law to be null and void. For the<br />
power of the Constitution predominates. Anything, therefore, that shall be enacted by Congress<br />
contrary thereto will not have the force of law."<br />
In the Connecticut ratifying convention, Oliver Ellsworth likewise described judicial review as a<br />
feature of the Constitution: "This Constitution defines the extent of the powers of the general<br />
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government. If the general legislature should at any time overleap their limits, the judicial<br />
department is a constitutional check. If the United States go beyond their powers, if they make a<br />
law which the Constitution does not authorize, it is void; and the judicial power, the national<br />
judges, who, to secure their impartiality, are to be made independent, will declare it to be void."<br />
During the ratification process, supporters and opponents of ratification published pamphlets,<br />
essays, and speeches debating various aspects of the Constitution. Publications by over a dozen<br />
authors in at least twelve of the thirteen states asserted that under the Constitution, the federal<br />
courts would have the power of judicial review. There is no record of any opponent to the<br />
Constitution who claimed that the Constitution did not involve a power of judicial review.<br />
After reviewing the statements made by the founders, one scholar concluded: "The evidence<br />
from the Constitutional Convention and from the state ratification conventions is overwhelming<br />
that the original public meaning of the term 'judicial power' [in Article III] included the power to<br />
nullify unconstitutional laws."<br />
The Federalist Papers<br />
The Federalist Papers, which were published in 1787–1788 to promote ratification of the<br />
Constitution, made several references to the power of judicial review. The most extensive<br />
discussion of judicial review was in Federalist No. 78, written by Alexander Hamilton, which<br />
clearly explained that the federal courts would have the power of judicial review. Hamilton<br />
stated that under the Constitution, the federal judiciary would have the power to declare laws<br />
unconstitutional. Hamilton asserted that this was appropriate because it would protect the people<br />
against abuse of power by Congress:<br />
“<br />
[T]he<br />
courts were designed to be an intermediate body between the<br />
people and the legislature, in order, among other things, to keep the<br />
latter within the limits assigned to their authority. The interpretation<br />
of the laws is the proper and peculiar province of the courts. A<br />
constitution is, in fact, and must be regarded by the judges, as a<br />
fundamental law. It therefore belongs to them to ascertain its<br />
meaning, as well as the meaning of any particular act proceeding<br />
from the legislative body. If there should happen to be an<br />
irreconcilable variance between the two, that which has the superior<br />
obligation and validity ought, of course, to be preferred; or, in other<br />
words, the Constitution ought to be preferred to the statute, the<br />
intention of the people to the intention of their agents.<br />
Nor does this conclusion by any means suppose a superiority of the<br />
judicial to the legislative power. It only supposes that the power of<br />
the people is superior to both; and that where the will of the<br />
legislature, declared in its statutes, stands in opposition to that of the<br />
people, declared in the Constitution, the judges ought to be governed<br />
”<br />
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y the latter rather than the former. They ought to regulate their<br />
decisions by the fundamental laws, rather than by those which are not<br />
fundamental....<br />
[A]ccordingly, whenever a particular statute contravenes the<br />
Constitution, it will be the duty of the <strong>Judicial</strong> tribunals to adhere to<br />
the latter and disregard the former....<br />
[T]he courts of justice are to be considered as the bulwarks of a<br />
limited Constitution against legislative encroachments.<br />
In Federalist No. 80, Hamilton rejected the idea that the power to decide the constitutionality of<br />
an act of Congress should lie with each of the states: "The mere necessity of uniformity in the<br />
interpretation of the national laws, decides the question. Thirteen independent courts of final<br />
jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from<br />
which nothing but contradiction and confusion can proceed." Consistent with the need for<br />
uniformity in interpretation of the Constitution, Hamilton explained in Federalist No. 82 that the<br />
Supreme Court has authority to hear appeals from the state courts in cases relating to the<br />
Constitution.<br />
The arguments against ratification by the Anti-Federalists agreed that the federal courts would<br />
have the power of judicial review, though the Anti-Federalists viewed this negatively. Robert<br />
Yates, writing under the pseudonym "Brutus", stated:<br />
“<br />
[T]he<br />
judges under this constitution will control the legislature, for the supreme<br />
court are authorised in the last resort, to determine what is the extent of the powers<br />
of the Congress. They are to give the constitution an explanation, and there is no<br />
power above them to set aside their judgment. . . . The supreme court then have a<br />
right, independent of the legislature, to give a construction to the constitution and<br />
every part of it, and there is no power provided in this system to correct their<br />
construction or do it away. If, therefore, the legislature pass any laws, inconsistent<br />
with the sense the judges put upon the constitution, they will declare it void.<br />
The Judiciary Act of 1789<br />
The first Congress passed the Judiciary Act of 1789, establishing the lower federal courts and<br />
specifying the details of federal court jurisdiction. Section 25 of the Judiciary Act provided for<br />
the Supreme Court to hear appeals from state courts when the state court decided that a federal<br />
statute was invalid, or when the state court upheld a state statute against a claim that the state<br />
statute was repugnant to the Constitution. This provision gave the Supreme Court the power to<br />
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eview state court decisions involving the constitutionality of both federal statutes and state<br />
statutes. The Judiciary Act thereby incorporated the concept of judicial review.<br />
Court Decisions from 1788 to 1803<br />
Between the ratification of the Constitution in 1788 and the decision in<br />
Marbury<br />
v. Madison in 1803, judicial review was employed in both<br />
the<br />
federal and state courts. A detailed analysis has identified<br />
thirty-<br />
one state or federal cases during this time in which<br />
statutes were struck down as unconstitutional, and seven<br />
additional cases in which statutes were upheld but at<br />
least one judge concluded the statute was<br />
unconstitutional. The author of this analysis,<br />
Professor William Treanor, concluded: "The sheer<br />
number of these decisions not only belies the<br />
notion that the institution of judicial review was<br />
created by Chief Justice Marshall in Marbury, it<br />
also reflects widespread acceptance and<br />
application of the doctrine."<br />
Several other cases involving judicial review issues reached the Supreme Court before the issue<br />
was definitively decided in Marbury in 1803.<br />
In Hayburn's Case, 2 U.S. (2 Dall.) 408 (1792), federal circuit courts held an act of Congress<br />
unconstitutional for the first time. Three federal circuit courts found that Congress had violated<br />
the Constitution by passing an act requiring circuit court judges to decide pension applications,<br />
subject to the review of the Secretary of War. These circuit courts found that this was not a<br />
proper judicial function under Article III. These three decisions were appealed to the Supreme<br />
Court, but the appeals became moot when Congress repealed the statute while the appeals were<br />
pending.<br />
In an unreported Supreme Court decision in 1794, United States v. Yale Todd, the Supreme Court<br />
reversed a pension that was awarded under the same pension act that had been at issue in<br />
Hayburn's Case. The Court apparently decided that the act designating judges to decide pensions<br />
was not constitutional because this was not a proper judicial function. This apparently was the<br />
first Supreme Court case to find an act of Congress unconstitutional. However, there was not an<br />
official report of the case and it was not used as a precedent.<br />
Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), was the first case decided by the Supreme<br />
Court that involved a challenge to the constitutionality of an act of Congress. It was argued that a<br />
federal tax on carriages violated the constitutional provision regarding "direct" taxes. The<br />
Supreme Court upheld the tax, finding it was constitutional. Although the Supreme Court did not<br />
strike down the act in question, the Court engaged in the process of judicial review by<br />
considering the constitutionality of the tax. The case was widely publicized at the time, and<br />
observers understood that the Court was testing the constitutionality of an act of Congress.<br />
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Because it found the statute valid, the Court did not have to assert that it had the power to declare<br />
a statute unconstitutional.<br />
In Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), the Supreme Court for the first time struck down<br />
a state statute. The Court reviewed a Virginia statute regarding pre-Revolutionary war debts and<br />
found that it was inconsistent with the peace treaty between the United States and Great Britain.<br />
Relying on the Supremacy Clause, the Court found the Virginia statute invalid.<br />
In Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798), the Supreme Court found that it did not<br />
have jurisdiction to hear the case because of the jurisdiction limitations of the Eleventh<br />
Amendment. This holding could be viewed as an implicit finding that the Judiciary Act of 1789,<br />
which would have allowed the Court jurisdiction, was unconstitutional in part. However, the<br />
Court did not provide any reasoning for its conclusion and did not say that it was finding the<br />
statute unconstitutional.<br />
In Cooper v. Telfair, 4 U.S. (4 Dall.) 14 (1800), Justice Chase stated: "It is indeed a general<br />
opinion—it is expressly admitted by all this bar and some of the judges have, individually in the<br />
circuits decided, that the Supreme Court can declare an act of Congress to be unconstitutional,<br />
and therefore invalid, but there is no adjudication of the Supreme Court itself upon the point."<br />
Responses to the Kentucky and Virginia Resolutions<br />
In 1798, the Kentucky and Virginia legislatures passed a series of resolutions asserting that the<br />
states have the power to determine whether acts of Congress are constitutional. In response, ten<br />
states passed their own resolutions disapproving the Kentucky and Virginia resolutions. Six of<br />
these states took the position that the power to declare acts of Congress unconstitutional lies in<br />
the federal courts, not in the state legislatures. For example, Vermont's resolution stated: "It<br />
belongs not to state legislatures to decide on the constitutionality of laws made by the general<br />
government; this power being exclusively vested in the judiciary courts of the Union."<br />
Thus, five years before Marbury v. Madison, a number of state legislatures stated their<br />
understanding that under the Constitution, the federal courts possess the power of judicial<br />
review.<br />
Marbury v. Madison<br />
The Supreme Court's landmark decision regarding judicial review is Marbury v. Madison, 5 U.S.<br />
(1 Cranch) 137 (1803). Marbury was the first Supreme Court decision to strike down an act of<br />
Congress as unconstitutional. Chief Justice John Marshall wrote the opinion for a unanimous<br />
Court.<br />
The case arose when William Marbury filed a lawsuit seeking an order (a "writ of mandamus")<br />
requiring the Secretary of State, James Madison, to deliver to Marbury a commission appointing<br />
him as a justice of the peace. Marbury filed his case directly in the Supreme Court, invoking the<br />
Court's "original jurisdiction", rather than filing in a lower court.<br />
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The constitutional issue involved the question of whether the Supreme Court had jurisdiction to<br />
hear the case. The Judiciary Act of 1789 gave the Supreme Court original jurisdiction in cases<br />
involving writs of mandamus. So, under the Judiciary Act, the Supreme Court would have had<br />
jurisdiction to hear Marbury's case. However, the Constitution describes the cases in which the<br />
Supreme Court has original jurisdiction, and does not include mandamus cases. The Judiciary<br />
Act therefore attempted to give the Supreme Court jurisdiction that was not "warranted by the<br />
Constitution."<br />
Marshall's opinion stated that in the Constitution, the people established a government of limited<br />
powers: "The powers of the Legislature are defined and limited; and that those limits may not be<br />
mistaken or forgotten, the Constitution is written." The limits established in the Constitution<br />
would be meaningless "if these limits may at any time be passed by those intended to be<br />
restrained." Marshall observed that the Constitution is "the fundamental and paramount law of<br />
the nation", and that it cannot be altered by an ordinary act of the legislature. Therefore, "an act<br />
of the Legislature repugnant to the Constitution is void."<br />
Marshall then discussed the role of the courts, which is at the heart of the doctrine of judicial<br />
review. It would be an "absurdity", said Marshall, to require the courts to apply a law that is<br />
void. Rather, it is the inherent duty of the courts to interpret and apply the Constitution, and to<br />
determine whether there is a conflict between a statute and the Constitution:<br />
“<br />
It<br />
is emphatically the province and duty of the <strong>Judicial</strong> Department to<br />
say what the law is. Those who apply the rule to particular cases<br />
must, of necessity, expound and interpret that rule. If two laws<br />
conflict with each other, the Courts must decide on the operation of<br />
each.<br />
So, if a law be in opposition to the Constitution, if both the law and<br />
the Constitution apply to a particular case, so that the Court must<br />
either decide that case conformably to the law, disregarding the<br />
Constitution, or conformably to the Constitution, disregarding the<br />
law, the Court must determine which of these conflicting rules<br />
governs the case. This is of the very essence of judicial duty.<br />
If, then, the Courts are to regard the Constitution, and the<br />
Constitution is superior to any ordinary act of the Legislature, the<br />
Constitution, and not such ordinary act, must govern the case to<br />
which they both apply....<br />
”<br />
Marshall stated that the courts are authorized by the provisions of the Constitution itself to "look<br />
into" the Constitution, that is, to interpret and apply it, and that they have the duty to refuse to<br />
enforce any laws that are contrary to the Constitution. Specifically, Article III provides that the<br />
federal judicial power "is extended to all cases arising under the Constitution." Article VI<br />
requires judges to take an oath "to support this Constitution." Article VI also states that only laws<br />
Page 51 of 115
"made in pursuance of the Constitution" are the law of the land. Marshall concluded: "Thus, the<br />
particular phraseology of the Constitution of the United States confirms and strengthens the<br />
principle, supposed to be essential to all written Constitutions, that a law repugnant to the<br />
Constitution is void, and that courts, as well as other departments, are bound by that instrument."<br />
Marbury long has been regarded as the seminal case with respect to the doctrine of judicial<br />
review. Some scholars have suggested that Marshall's opinion in Marbury essentially created<br />
judicial review. In his book The Least Dangerous Branch, Professor Alexander Bickel wrote:<br />
“<br />
[T]he<br />
institution of the judiciary needed to be summoned up out of<br />
the constitutional vapors, shaped, and maintained. And the Great<br />
Chief Justice, John Marshall—not single-handed, but first and<br />
foremost—was there to do it and did. If any social process can be said<br />
to have been 'done' at a given time, and by a given act, it is Marshall's<br />
achievement. The time was 1803; the act was the decision in the case<br />
of Marbury v. Madison.<br />
”<br />
Other scholars view this as an overstatement, and argue that Marbury was decided in a context in<br />
which judicial review already was a familiar concept. These scholars point to the facts showing<br />
that judicial review was acknowledged by the Constitution's framers, was explained in the<br />
Federalist Papers and in the ratification debates, and was used by both state and federal courts for<br />
more than twenty years before Marbury, including the Supreme Court in Hylton v. United States.<br />
One scholar concluded: "[B]efore Marbury, judicial review had gained wide support."<br />
<strong>Judicial</strong> Review Post Marbury<br />
After the Court exercised its power of judicial review in Marbury, it avoided striking down a<br />
federal statute during the next fifty years. The court would not do so again until Dred Scott v.<br />
Sandford, 60 U.S. (19 How.) 393 (1857).<br />
However, the Supreme Court did exercise judicial review in other contexts. In particular, the<br />
Court struck down a number of state statutes that were contrary to the Constitution. The first case<br />
in which the Supreme Court struck down a state statute as unconstitutional was Fletcher v. Peck,<br />
10 U.S. (6 Cranch) 87 (1810).<br />
In a few cases, state courts took the position that their judgments were final and were not subject<br />
to review by the Supreme Court. They argued that the Constitution did not give the Supreme<br />
Court the authority to review state court decisions. They asserted that the Judiciary Act of 1789,<br />
which provided that the Supreme Court could hear certain appeals from state courts, was<br />
unconstitutional. In effect, these state courts were asserting that the principle of judicial review<br />
did not extend to allow federal review of state court decisions. This would have left the states<br />
free to adopt their own interpretations of the Constitution.<br />
Page 52 of 115
The Supreme Court rejected this argument. In Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304<br />
(1816), the Court held that under Article III, the federal courts have jurisdiction to hear all cases<br />
arising under the Constitution and laws of the United States, and that the Supreme Court has<br />
appellate jurisdiction in all such cases, whether those cases are filed in state or federal courts.<br />
The Court issued another decision to the same effect in the context of a criminal case, Cohens v.<br />
Virginia, 19 U.S. (6 Wheat.) 264 (1821). It is now well established that the Supreme Court may<br />
review decisions of state courts that involve federal law.<br />
The Supreme Court also has reviewed actions of the federal executive branch to determine<br />
whether those actions were authorized by acts of Congress or were beyond the authority granted<br />
by Congress.<br />
<strong>Judicial</strong> review is now well established as a cornerstone of constitutional law. As of 2014, the<br />
United States Supreme Court had held unconstitutional some 176 Acts of the U.S. Congress.<br />
Although judicial review has now become an established part of constitutional law in the United<br />
States, there are some who disagree with the doctrine.<br />
At the Constitutional Convention, neither proponents nor opponents of judicial review disputed<br />
that any government based on a written constitution requires some mechanism to prevent laws<br />
that violate that constitution from being made and enforced. Otherwise, the document would be<br />
meaningless, and the legislature, with the power to enact any laws whatsoever, would be the<br />
supreme arm of government (the British doctrine of parliamentary sovereignty). The delegates at<br />
the Convention differed with respect to the question of whether Congress or the judiciary should<br />
make determinations regarding constitutionality of statutes. Hamilton addressed this in Federalist<br />
No. 78, in which he explained the reasons that the federal judiciary has the role of reviewing the<br />
constitutionality of statutes:<br />
“<br />
If<br />
it be said that the legislative body are themselves the constitutional<br />
judges of their own powers, and that the construction they put upon<br />
them is conclusive upon the other departments, it may be answered,<br />
that this cannot be the natural presumption, where it is not to be<br />
collected from any particular provisions in the Constitution. It is not<br />
otherwise to be supposed, that the Constitution could intend to enable<br />
the representatives of the people to substitute their will to that of their<br />
constituents. It is far more rational to suppose, that the courts were<br />
designed to be an intermediate body between the people and the<br />
legislature, in order, among other things, to keep the latter within the<br />
limits assigned to their authority.<br />
”<br />
Since the adoption of the Constitution, some have argued that the power of judicial review gives<br />
the courts the ability to impose their own views of the law, without an adequate check from any<br />
other branch of government. Robert Yates, a delegate to the Constitutional Convention from<br />
New York, argued during the ratification process in the Anti-Federalist Papers that the courts<br />
Page 53 of 115
would use the power of judicial review loosely to impose their views about the "spirit" of the<br />
Constitution:<br />
“<br />
[I]n<br />
their decisions they will not confine themselves to any fixed or<br />
established rules, but will determine, according to what appears to<br />
them, the reason and spirit of the constitution. The opinions of the<br />
supreme court, whatever they may be, will have the force of law;<br />
because there is no power provided in the constitution, that can<br />
correct their errors, or controul their adjudications. From this court<br />
there is no appeal.<br />
”<br />
In 1820, Thomas Jefferson expressed his opposition to the doctrine of judicial review:<br />
“<br />
You<br />
seem ... to consider the judges as the ultimate arbiters of all<br />
constitutional questions; a very dangerous doctrine indeed, and one<br />
which would place us under the despotism of an oligarchy. Our<br />
judges are as honest as other men, and not more so. They have, with<br />
others, the same passions for party, for power, and the privilege of<br />
their corps.... Their power [is] the more dangerous as they are in<br />
office for life, and not responsible, as the other functionaries are, to<br />
the elective control. The Constitution has erected no such single<br />
tribunal, knowing that to whatever hands confided, with the<br />
corruptions of time and party, its members would become despots. It<br />
has more wisely made all the departments co-equal and co-sovereign<br />
within themselves.<br />
”<br />
In 1861, Abraham Lincoln touched upon the same subject, during his first inaugural address:<br />
“<br />
[T]he<br />
candid citizen must confess that if the policy of the<br />
Government upon vital questions affecting the whole people is to be<br />
irrevocably fixed by decisions of the Supreme Court, the instant they<br />
are made in ordinary litigation between parties in personal actions the<br />
people will have ceased to be their own rulers, having to that extent<br />
practically resigned their Government into the hands of that eminent<br />
tribunal. Nor is there in this view any assault upon the court or the<br />
judges. It is a duty from which they may not shrink to decide cases<br />
properly brought before them, and it is no fault of theirs if others seek<br />
to turn their decisions to political purposes.<br />
”<br />
Page 54 of 115
Lincoln was alluding here to the case of Dred Scott v. Sandford, in which the Court had struck<br />
down a federal statute for the first time since Marbury v. Madison.<br />
It has been argued that the judiciary is not the only branch of government that may interpret the<br />
meaning of the Constitution. Article VI requires federal and state officeholders to be bound "by<br />
Oath or Affirmation, to support this Constitution." It has been argued that such officials may<br />
follow their own interpretations of the Constitution, at least until those interpretations have been<br />
tested in court.<br />
Some have argued that judicial review is unconstitutional. See W.W. Crosskey, Politics and the<br />
Constitution in the History of the United States (Chicago: 1953), chs. 27-29, with which compare<br />
Hart, Book Review, 67 Harv. L. Rev. 1456 (1954). A brief review of the debate on the subject is<br />
Westin, Introduction: Charles Beard and American Debate over <strong>Judicial</strong> Review, 1790-1961, in<br />
C. Beard, The Supreme Court and the Constitution (Englewood Cliffs: 1962 reissue of 1938 ed.),<br />
1-34, and bibliography at 133-149. See more at:<br />
http://constitution.findlaw.com/article3/annotation13.html#f576<br />
This theory is generally based on two arguments. First, the power of judicial review is not<br />
expressly delegated to the courts in the Constitution. The Tenth Amendment reserves to the<br />
states (or to the people) those powers not delegated to the federal government. The second<br />
argument is that the states alone have the power to ratify changes to the "supreme law" (the U.S.<br />
Constitution), and that the states should play some role in interpreting its meaning. Under this<br />
theory, allowing only federal courts to definitively conduct judicial review of federal law allows<br />
the national government to interpret its own restrictions as it sees fit, with no meaningful input<br />
from the ratifying power.<br />
The Contemporary Standard<br />
In the United States, unconstitutionality is the only ground for a federal court to strike down a<br />
federal statute. Justice Washington, speaking for the Marshall Court, put it this way in an 1829<br />
case:<br />
“<br />
We<br />
intend to decide no more than that the statute objected to in this<br />
case is not repugnant to the Constitution of the United States, and that<br />
unless it be so, this Court has no authority, under the 25th section of<br />
the judiciary act, to re-examine and to reverse the judgement of the<br />
supreme court of Pennsylvania in the present case.<br />
”<br />
If a state statute conflicts with a valid federal statute, then courts may strike down the state<br />
statute as an unstatutable violation of the Supremacy Clause. But a federal court may not strike<br />
down a statute absent a violation of federal law or of the federal Constitution.<br />
Page 55 of 115
Moreover, a suspicion or possibility of unconstitutionality is not enough for American<br />
courts to strike down a statute. Alexander Hamilton explained in Federalist<br />
78 that the standard of review should be "irreconcilable variance" with the<br />
Constitution. Anti-federalists agreed that courts would be unable to strike<br />
down federal statutes absent a conflict<br />
with the Constitution.<br />
For example, Robert Yates, writing under the<br />
pseudonym "Brutus", asserted that<br />
"the courts of the<br />
general government [will] be<br />
under obligation<br />
to observe the laws made by the<br />
general<br />
legislature not repugnant to<br />
the<br />
constitution."<br />
These<br />
principles—that<br />
federal statutes can only be<br />
struck down for<br />
unconstitutionality<br />
and that the unconstitutionality<br />
must be clear—<br />
were very common<br />
views at the time of<br />
the framing of the<br />
Constitution. For example, George Mason<br />
explained during the constitutional convention<br />
that judges "could declare<br />
an unconstitutional law void.<br />
But with regard to every law, however unjust, oppressive or<br />
pernicious, which did not come plainly under this description, they would be under the necessity<br />
as Judges to give it a free course."<br />
For a number of years, the courts were relatively deferential to Congress. Justice Washington put<br />
it this way, in an 1827 case: "It is but a decent respect to the wisdom, integrity, and patriotism of<br />
the legislative body, by which any law is passed, to presume in favor of its validity, until its<br />
violation of the Constitution is proved beyond a reasonable doubt."<br />
Although judges usually adhered to this principle that a statute could only be deemed<br />
unconstitutional in case of a clear contradiction until the twentieth century, this presumption of<br />
constitutionality weakened somewhat during the twentieth century, as exemplified by the<br />
Supreme Court's famous footnote four in United States v. Carolene Products Co., 304 U.S. 144<br />
(1938), which suggested that statutes may be subjected to closer scrutiny in certain types of<br />
cases. Nevertheless, the federal courts have not departed from the principle that courts may only<br />
strike down statutes for unconstitutionality.<br />
Page 56 of 115
Of course, the practical implication of this principle is that a court cannot strike down a statute,<br />
even if it recognizes that the statute is obviously poorly drafted, irrational, or arises from<br />
legislators' corrupt motives, unless the flaw in the statute rises to the level of a clear<br />
constitutional violation. In 2008, Justice John Paul Stevens reaffirmed this point in a concurring<br />
opinion: "[A]s I recall my esteemed former colleague, Thurgood Marshall, remarking on<br />
numerous occasions: 'The Constitution does not prohibit legislatures from enacting stupid laws.'"<br />
In the federal system, courts may only decide actual cases or controversies; it is not possible to<br />
request the federal courts to review a law without at least one party having legal standing to<br />
engage in a lawsuit. This principle means that courts sometimes do not exercise their power of<br />
review, even when a law is seemingly unconstitutional, for want of jurisdiction. In some state<br />
courts, such as the Massachusetts Supreme <strong>Judicial</strong> Court, legislation may be referred in certain<br />
circumstances by the legislature or by the executive for an advisory ruling on its constitutionality<br />
prior to its enactment (or enforcement).<br />
The U.S. Supreme Court seeks to avoid reviewing the Constitutionality of an act where the case<br />
before it could be decided on other grounds. Justice Brandeis framed it thus (citations omitted):<br />
“<br />
The<br />
Court developed, for its own governance in the cases within its jurisdiction, a<br />
series of rules under which it has avoided passing upon a large part of all the<br />
constitutional questions pressed upon it for decision. They are:<br />
1. The Court will not pass upon the constitutionality of legislation in a<br />
friendly, non-adversary, proceeding, declining because to decide such<br />
questions is legitimate only in the last resort, and as a necessity in the<br />
determination of real, earnest, and vital controversy between individuals. It<br />
never was the thought that, by means of a friendly suit, a party beaten in the<br />
legislature could transfer to the courts an inquiry as to the constitutionality<br />
of the legislative act.<br />
2. The Court will not anticipate a question of constitutional law in advance of<br />
the necessity of deciding it. It is not the habit of the court to decide<br />
questions of a constitutional nature unless absolutely necessary to a<br />
decision of the case.<br />
3. The Court will not formulate a rule of constitutional law broader than<br />
required by the precise facts it applies to.<br />
4. The Court will not pass upon a constitutional question although properly<br />
presented by the record, if there is also present some other ground upon<br />
which the case may be disposed of… If a case can be decided on either of<br />
two grounds, one involving a constitutional question, the other a question of<br />
statutory construction or general law, the Court will decide only the latter.<br />
5. The Court will not pass upon the validity of a statute upon complaint of one<br />
who fails to show that he is injured by its operation.<br />
6. The Court will not pass upon the constitutionality of a statute at the instance<br />
of one who has availed himself of its benefits.<br />
Page 57 of 115
7. When the validity of an act of the Congress is drawn in question, and even<br />
if a serious doubt of constitutionality is raised, it is a cardinal principle that<br />
this Court will first ascertain whether a construction of the statute is fairly<br />
possible by which the question may be avoided.<br />
Statutory Limitations<br />
Although the Supreme Court continues to review the constitutionality of statutes, Congress and<br />
the states retain some power to influence what cases come before the Court. For example, the<br />
Constitution at Article III, Section 2, gives Congress power to make exceptions to the Supreme<br />
Court's appellate jurisdiction. The Supreme Court has historically acknowledged that its<br />
appellate jurisdiction is defined by Congress, and thus Congress may have power to make some<br />
legislative or executive actions unreviewable. This is known as jurisdiction stripping.<br />
Another way for Congress to limit judicial review was tried in January 1868, when a bill was<br />
proposed requiring a two-thirds majority of the Court in order to deem any Act of Congress<br />
unconstitutional. The bill was approved by the House, 116 to 39. [67] That measure died in the<br />
Senate, partly because the bill was unclear about how the bill's own constitutionality would be<br />
decided. [68]<br />
Many other bills have been proposed in Congress that would require a supermajority in order for<br />
the justices to exercise judicial review. [69] During the early years of the United States, a twothirds<br />
majority was necessary for the Supreme Court to exercise judicial review; because the<br />
Court then consisted of six members, a simple majority and a two-thirds majority both required<br />
four votes. [70] Currently, the constitutions of two states require a supermajority of supreme court<br />
justices in order to exercise judicial review: Nebraska (five out of seven justices) and North<br />
Dakota (four out of five justices).<br />
In The Soviet Union<br />
In modern Russia, aspects and directions of development of judicial reform were formulated in<br />
the «<strong>Judicial</strong> Reform Concept», enacted by the Russian Parliament on October 24, 1991. This<br />
document still remains legally valid and applicable.<br />
Valery Zorkin stressed that "the «separation of powers» principle, also proclaimed in the<br />
Constitution of the Russian Federation, requires observance of judicial independence. And such<br />
independence requires proper funding of the courts and their activities. It is well known that<br />
Russian courts remain under-funded. However, the cumulative economic costs suffered by both<br />
state and private enterprises as the result of under-performance by various judicial institutions,<br />
especially by the courts of general jurisdiction and the arbitration courts, is at least twice the<br />
order of magnitude as the financial burden carried by the state and society in financing such<br />
judicial institutions. The elimination of under-funding of the courts would definitely improve the<br />
efficiency of their work and be worthwhile.<br />
Page 58 of 115
Taking into account the specifics of historical developments in Russia, one may assert that<br />
without undertaking a large-scale legal reform it would be extremely difficult to succeed<br />
concurrently with judicial reform. It is necessary now to start unfolding a full-scale legal reform,<br />
which has to be completed by the year 2020. The official public presentation and implementation<br />
of such legal reform should become the prime responsibility of executive and legislative<br />
authorities. The program of legal reform needs to be adopted in the form of a legislative act.<br />
Page 59 of 115
Page 60 of 115
Rule of Law<br />
The Rule of Law (also known as Nomocracy) is the legal<br />
principle that law should govern a nation, as opposed to<br />
arbitrary decisions by individual government officials. It<br />
primarily refers to the influence and authority of law within<br />
society, particularly as a constraint upon behavior, including<br />
behavior of government officials. The phrase can be traced<br />
back to 16th century England, and it was popularized in the<br />
19th century by British jurist A. V. Dicey. The concept was<br />
familiar to ancient philosophers such as Aristotle, who wrote<br />
"Law should govern".<br />
Rule of law implies that every citizen is subject to the law,<br />
including law makers themselves. In this sense, it stands in<br />
contrast to an autocracy, collective leadership, dictatorship,<br />
or oligarchy where the rulers are held above the law (which<br />
is not necessary by definition but which is typical). Lack of<br />
the rule of law can be found in democracies and dictatorships, and can happen because of neglect<br />
or ignorance of the law, corruption, or lack of corrective mechanisms for administrative abuse,<br />
such as an independent judiciary with a rule-of-law culture, a practical right to petition for<br />
redress of grievances, or elections.<br />
Although credit for popularizing the expression "the rule of law" in modern times is usually<br />
given to A. V. Dicey, development of the legal concept can be traced through history to many<br />
ancient civilizations, including ancient Greece, China, Mesopotamia, India and Rome.<br />
Antiquity<br />
In the West, the ancient Greeks initially regarded the best form of government as rule by the best<br />
men. Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was<br />
above the law. Plato nevertheless hoped that the best men would be good at respecting<br />
established laws, explaining that "Where the law is subject to some other authority and has none<br />
of its own, the collapse of the state, in my view, is not far off; but if law is the master of the<br />
government and the government is its slave, then the situation is full of promise and men enjoy<br />
all the blessings that the gods shower on a state." More than Plato attempted to do, Aristotle<br />
flatly opposed letting the highest officials wield power beyond guarding and serving the laws. In<br />
other words, Aristotle advocated the rule of law:<br />
It is more proper that law should govern than any one of the citizens: upon the same principle, if<br />
it is advantageous to place the supreme power in some particular persons, they should be<br />
appointed to be only guardians, and the servants of the laws.<br />
Page 61 of 115
According to the Roman statesman Cicero, "We are all servants of the laws in order that we may<br />
be free." During the Roman Republic, controversial magistrates might be put on trial when their<br />
terms of office expired. Under the Roman Empire, the sovereign was personally immune<br />
(legibus solutus), but those with grievances could sue the treasury.<br />
In China, members of the school of legalism during the 3rd century BC argued for using law as a<br />
tool of governance, but they promoted "rule by law" as opposed to "rule of law", meaning that<br />
they placed the aristocrats and emperor above the law. In contrast, the Huang-Lao school of<br />
Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to.<br />
There has recently been an effort to reevaluate the influence of the Bible on Western<br />
constitutional law. In the Old Testament, there was some language in Deuteronomy imposing<br />
restrictions on the Jewish king, regarding such things as how many wives he could have, and<br />
how many horses he could own for his personal use. According to Professor Bernard M.<br />
Levinson, "This legislation was so utopian in its own time that it seems never to have been<br />
implemented...." The Deuteronomic social vision may have influenced opponents of the divine<br />
right of kings, including Bishop John Ponet in sixteenth-century England.<br />
Middle Ages<br />
In Islamic jurisprudence rule of law was formulated in the seventh century, so that no official<br />
could claim to be above the law, not even the caliph. However, this was not a reference to<br />
secular law, but to Islamic religious law in the form of Sharia law.<br />
In 1215, Archbishop Stephen Langton gathered the Barons in England and forced King John and<br />
future sovereigns and magistrates back under the rule of law, preserving ancient liberties by the<br />
Magna Carta in return for exacting taxes. This foundation for constitution was carried into the<br />
Constitution of the United States.<br />
Early Modern Period<br />
The first known use of this English phrase occurred around 1500 A.D. Another early example of<br />
the phrase "rule of law" is found in a petition to James I of England in 1610, from the House of<br />
Commons:<br />
Amongst many other points of happiness and freedom which your majesty's subjects of this<br />
kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is<br />
none which they have accounted more dear and precious than this, to be guided and governed by<br />
the certain rule of the law which giveth both to the head and members that which of right<br />
belongeth to them, and not by any uncertain or arbitrary form of government....<br />
Page 62 of 115
In 1607, English Chief Justice<br />
Sir Edward Coke said in the<br />
Case of Prohibitions (according<br />
to his own report) "that the law<br />
was the golden met-wand and<br />
measure to try the causes of the<br />
subjects; and which protected<br />
His Majesty in safety and peace:<br />
with which the King was greatly<br />
offended, and said, that then he<br />
should be under the law, which<br />
was treason to affirm, as he said;<br />
to which I said, that Bracton<br />
saith, quod Rex non debed esse<br />
sub homine, sed sub Deo et lege<br />
(That the King ought not to be<br />
under any man but under God<br />
and the law.)."<br />
Among the first modern authors<br />
to give the principle theoretical<br />
foundations was Samuel<br />
Rutherford in Lex, Rex (1644). The title, Latin for "the law is king", subverts the traditional<br />
formulation rex lex ("the king is law"). John Locke also discussed this issue in his Second<br />
Treatise of Government (1690). The principle was also discussed by Montesquieu in The Spirit<br />
of the Laws (1748). The phrase "rule of law" appears in Samuel Johnson's Dictionary (1755).<br />
In 1776, the notion that no one is above the law was popular during the founding of the United<br />
States. For example, Thomas Paine wrote in his pamphlet Common Sense that "in America, the<br />
law is king. For as in absolute governments the King is law, so in free countries the law ought to<br />
be king; and there ought to be no other." In 1780, John Adams enshrined this principle in the<br />
Massachusetts Constitution by seeking to establish "a government of laws and not of men."<br />
Categorization<br />
The Oxford English Dictionary has defined "rule of law" this way:<br />
“The authority and influence of law in society, esp. when viewed as a constraint on individual and<br />
institutional behaviour; (hence) the principle whereby all members of a society (including those in<br />
government) are considered equally subject to publicly disclosed legal codes and processes.”<br />
Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that<br />
the ruler is above the law, for example by divine right.<br />
Despite wide use by politicians, judges and academics, the rule of law has been described as "an<br />
exceedingly elusive notion" According to political theorist Judith N. Shklar, "the phrase 'the Rule<br />
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of Law' has become meaningless thanks to ideological abuse and general over-use", but<br />
nevertheless this phrase has in the past had specific and important meanings.<br />
Among modern legal theorists, one finds that at least two principal conceptions of the rule of law<br />
can be identified: a formalist or "thin" definition, and a substantive or "thick" definition; one<br />
occasionally encounters a third "functional" conception. Formalist definitions of the rule of law<br />
do not make a judgment about the "justness" of law itself, but define specific procedural<br />
attributes that a legal framework must have in order to be in compliance with the rule of law.<br />
Substantive conceptions of the rule of law go beyond this and include certain substantive rights<br />
that are said to be based on, or derived from, the rule of law.<br />
Most legal theorists believe that the rule of law has purely formal characteristics, meaning that<br />
the law must be publicly declared, with prospective application, and possess the characteristics<br />
of generality, equality, and certainty, but there are no requirements with regard to the content of<br />
the law. Others, including a few legal theorists, believe that the rule of law necessarily entails<br />
protection of individual rights. Within legal theory, these two approaches to the rule of law are<br />
seen as the two basic alternatives, respectively labelled the formal and substantive approaches.<br />
Still, there are other views as well. Some believe that democracy is part of the rule of law.<br />
The "formal" interpretation is more widespread than the "substantive" interpretation. Formalists<br />
hold that the law must be prospective, well-known, and have characteristics of generality,<br />
equality, and certainty. Other than that, the formal view contains no requirements as to the<br />
content of the law. This formal approach allows laws that protect democracy and individual<br />
rights, but recognizes the existence of "rule of law" in countries that do not necessarily have such<br />
laws protecting democracy or individual rights.<br />
The substantive interpretation holds that the rule of law intrinsically protects some or all<br />
individual rights.<br />
The functional interpretation of the term "rule of law", consistent with the traditional English<br />
meaning, contrasts the "rule of law" with the "rule of man." According to the functional view, a<br />
society in which government officers have a great deal of discretion has a low degree of "rule of<br />
law", whereas a society in which government officers have little discretion has a high degree of<br />
"rule of law". Upholding the rule of law can sometimes require the punishment of those who<br />
commit offenses that are justifiable under natural law but not statutory law. The rule of law is<br />
thus somewhat at odds with flexibility, even when flexibility may be preferable.<br />
The ancient concept of rule of law can be distinguished from rule by law, according to political<br />
science professor Li Shuguang: "The difference....is that, under the rule of law, the law is<br />
preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a<br />
mere tool for a government, that suppresses in a legalistic fashion."<br />
Variations<br />
The rule of law has been considered as one of the key dimensions that determine the quality and<br />
good governance of a country. Research, like the Worldwide Governance Indicators, defines the<br />
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ule of law as: "the extent to which agents have confidence and abide by the rules of society, and<br />
in particular the quality of contract enforcement, the police and the courts, as well as the<br />
likelihood of crime or violence." Based on this definition the Worldwide Governance Indicators<br />
project has developed aggregate measurements for the rule of law in more than 200 countries, as<br />
seen in the map below. A government based on the rule of law can be called a "nomocracy",<br />
from the Greek nomos (law) and kratos (power or rule).<br />
Europe<br />
Rule of law in the United Kingdom is a core principle of the way the country is governed. In the<br />
19th century, A. V. Dicey, a constitutional scholar and lawyer, wrote of the twin pillars of the<br />
British constitution in his classic work Introduction to the Study of the Law of the Constitution<br />
(1885). These pillars are the principle of Parliamentary sovereignty and the rule of law.<br />
In Finland, the constitution explicitly requires rule of law by stipulating that "the exercise of<br />
public powers shall be based on an Act. In all public activity, the law shall be strictly observed."<br />
United States<br />
All government officers of the United States,<br />
including the President, the Justices of the<br />
Supreme Court, state judges and legislators,<br />
and all members of Congress, pledge first and<br />
foremost to uphold the Constitution. These<br />
oaths affirm that the rule of law is superior to<br />
the rule of any human leader. At the same time,<br />
the federal government has considerable<br />
discretion: the legislative branch is free to<br />
decide what statutes it will write, as long as it<br />
stays within its enumerated powers and<br />
respects the constitutionally protected rights of<br />
individuals. Likewise, the judicial branch has a<br />
degree of judicial discretion, and the executive<br />
branch also has various discretionary powers<br />
including prosecutorial discretion.<br />
Scholars continue to debate whether the U.S. Constitution adopted a particular interpretation of<br />
the "rule of law," and if so, which one. For example, Law Professor John Harrison asserts that<br />
the word "law" in the Constitution is simply defined as that which is legally binding, rather than<br />
being "defined by formal or substantive criteria," and therefore judges do not have discretion to<br />
decide that laws fail to satisfy such unwritten and vague criteria. Law Professor Frederick Mark<br />
Gedicks disagrees, writing that Cicero, Augustine, Thomas Aquinas, and the framers of the U.S.<br />
Constitution believed that an unjust law was not really a law at all.<br />
Some modern scholars contend that the rule of law has been corroded during the past century by<br />
the instrumental view of law promoted by legal realists such as Oliver Wendell Holmes and<br />
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Roscoe Pound. For example, Professor Brian Tamanaha asserts: "The rule of law is a centuriesold<br />
ideal, but the notion that law is a means to an end became entrenched only in the course of<br />
the nineteenth and twentieth centuries."<br />
Others argue that the rule of law has survived but was transformed to allow for the exercise of<br />
discretion by administrators. For much of American history, the dominant notion of the rule of<br />
law, in this setting, has been some version of A. V. Dicey's: ―no man is punishable or can be<br />
lawfully made to suffer in body or goods except for a distinct breach of law established in the<br />
ordinary legal manner before the ordinary Courts of the land.‖ That is, individuals should be able<br />
to challenge an administrative order by bringing suit in a court of general jurisdiction. As the<br />
dockets of worker compensation commissions, public utility commissions and other agencies<br />
burgeoned, it soon became apparent that letting judges decide for themselves all the facts in a<br />
dispute (such as the extent of an injury in a worker's compensation case) would overwhelm the<br />
courts and destroy the advantages of specialization that led to the creation of administrative<br />
agencies in the first place. Even Charles Evans Hughes, a Chief Justice of the United States,<br />
believed ―you must have administration, and you must have administration by administrative<br />
officers.‖ By 1941, a compromise had emerged. If administrators adopted procedures that moreor-less<br />
tracked "the ordinary legal manner" of the courts, further review of the facts by "the<br />
ordinary Courts of the land" was unnecessary. That is, if you had your "day in commission," the<br />
rule of law did not require a further "day in court." Thus Dicey's rule of law was recast into a<br />
purely procedural form.<br />
James Wilson said during the Philadelphia Convention in 1787 that, "Laws may be unjust, may<br />
be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify<br />
the Judges in refusing to give them effect." George Mason agreed that judges "could declare an<br />
unconstitutional law void. But with regard to every law, however unjust, oppressive or<br />
pernicious, which did not come plainly under this description, they would be under the necessity<br />
as judges to give it a free course." Chief Justice John Marshall (joined by Justice Joseph Story)<br />
took a similar position in 1827: "When its existence as law is denied, that existence cannot be<br />
proved by showing what are the qualities of a law."<br />
Asia<br />
East Asian cultures are influenced by two schools of thought, Confucianism, which advocated<br />
good governance as rule by leaders who are benevolent and virtuous, and Legalism, which<br />
advocated strict adherence to law. The influence of one school of thought over the other has<br />
varied throughout the centuries. One study indicates that throughout East Asia, only South<br />
Korea, Singapore, Japan, Taiwan and Hong Kong have societies that are robustly committed to a<br />
law-bound state. According to Awzar Thi, a member of the Asian Human Rights Commission,<br />
the rule of law in Thailand, Cambodia, and most of Asia is weak or nonexistent:<br />
Apart from a number of states and territories, across the continent there is a huge gulf between<br />
the rule of law rhetoric and reality. In Thailand, the police force is an organized crime gang. In<br />
Cambodia, judges are proxies for the ruling political party ... That a judge may harbor political<br />
prejudice or apply the law unevenly are the smallest worries for an ordinary criminal defendant<br />
in Asia. More likely ones are: Will the police fabricate the evidence? Will the prosecutor bother<br />
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to show up? Will the judge fall asleep? Will I be poisoned in prison? Will my case be completed<br />
within a decade?<br />
In countries such as China and Vietnam, the transition to a market economy has been a major<br />
factor in a move toward the rule of law, because a rule of law is important to foreign investors<br />
and to economic development. It remains unclear whether the rule of law in countries like China<br />
and Vietnam will be limited to commercial matters or will spill into other areas as well, and if so<br />
whether that spillover will enhance prospects for related values such as democracy and human<br />
rights. The rule of law in China has been widely discussed and debated by both legal scholars<br />
and politicians in China.<br />
In Thailand, a kingdom that has had a constitution since the initial attempt to overthrow the<br />
absolute monarchy system in 1932, the rule of law has been more of a principle than actual<br />
practice. Ancient prejudices and political bias have been present in the three branches of<br />
government with each of their foundings, and justice has been processed formally according to<br />
the law but in fact more closely aligned with royalist principles that are still advocated in the 21st<br />
century. In November 2013, Thailand faced still further threats to the rule of law when the<br />
executive branch rejected a supreme court decision over how to select senators.<br />
In India, the longest constitutional text in the history of the world has governed that country<br />
since 1950. Although the Constitution of India may have been intended to provide details that<br />
would limit the opportunity for judicial discretion, the more text there is in a constitution the<br />
greater opportunity the judiciary may have to exercise judicial review. According to Indian<br />
journalist Harish Khare, "The rule of law or rather the Constitution [is] in danger of being<br />
supplanted by the rule of judges."<br />
Japan had centuries of tradition prior to World War II, during which there were laws, but they<br />
did not provide a central organizing principle for society, and they did not constrain the powers<br />
of government (Boadi, 2001). As the 21st century began, the percentage of people who were<br />
lawyers and judges in Japan remained very low relative to western Europe and the United States,<br />
and legislation in Japan tended to be terse and general, leaving much discretion in the hands of<br />
bureaucrats.<br />
Worldwide Organizational Promotion<br />
Various organizations are involved in promoting the rule of law.<br />
International Commission of Jurists<br />
In 1959, an international gathering of over 185 judges, lawyers, and law professors from 53<br />
countries, meeting in New Delhi and speaking as the International Commission of Jurists, made a<br />
declaration as to the fundamental principle of the rule of law. This was the Declaration of Delhi.<br />
They declared that the rule of law implies certain rights and freedoms, that it implies an<br />
independent judiciary, and that it implies social, economic and cultural conditions conducive to<br />
human dignity. The Declaration of Delhi did not, however, suggest that the rule of law requires<br />
legislative power to be subject to judicial review.<br />
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United Nations<br />
The Secretary-General of the United Nations defines the rule of law as:<br />
a principle of governance in which all persons, institutions and entities, public and private,<br />
including the State itself, are accountable to laws that are publicly promulgated, equally enforced<br />
and independently adjudicated, and which are consistent with international human rights norms<br />
and standards. It requires, as well, measures to ensure adherence to the principles of supremacy<br />
of law, equality before the law, accountability to the law, fairness in the application of the law,<br />
separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness<br />
and procedural and legal transparency.<br />
The General Assembly has considered rule of law as an agenda item since 1992, with renewed<br />
interest since 2006 and has adopted resolutions at its last three sessions. The Security Council<br />
has held a number of thematic debates on the rule of law, and adopted resolutions emphasizing<br />
the importance of these issues in the context of women, peace and security, children in armed<br />
conflict, and the protection of civilians in armed conflict. The Peacebuilding Commission has<br />
also regularly addressed rule of law issues with respect to countries on its agenda. The Vienna<br />
Declaration and Programme of Action also requires the rule of law be included in human rights<br />
education.<br />
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International Bar Association<br />
The Council of the International Bar Association passed a resolution in 2009 endorsing a<br />
substantive or "thick" definition of the rule of law:<br />
An independent, impartial judiciary; the presumption of innocence; the right to a fair and public<br />
trial without undue delay; a rational and proportionate approach to punishment; a strong and<br />
independent legal profession; strict protection of confidential communications between lawyer<br />
and client; equality of all before the law; these are all fundamental principles of the Rule of Law.<br />
Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading<br />
treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable.<br />
The Rule of Law is the foundation of a civilised society. It establishes a transparent process<br />
accessible and equal to all. It ensures adherence to principles that both liberate and protect. The<br />
IBA calls upon all countries to respect these fundamental principles. It also calls upon its<br />
members to speak out in support of the Rule of Law within their respective communities.<br />
World Justice Project<br />
As used by the World Justice Project, a non-profit organization committed to advancing the rule<br />
of law around the world, the rule of law refers to a rules-based system in which the following<br />
four universal principles are upheld:<br />
1. The government and its officials and agents are accountable under the law;<br />
2. The laws are clear, publicized, stable, fair, and protect fundamental rights, including the<br />
security of persons and property;<br />
3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and<br />
efficient;<br />
4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or<br />
representatives, and judicial officers who are of sufficient number, have adequate resources, and<br />
reflect the makeup of the communities they serve.<br />
The World Justice Project has developed an Index to measure the extent to which countries<br />
adhere to the rule of law in practice. The WJP Rule of Law Index is composed of 9 factors and<br />
52 sub-factors, and covers a variety of dimensions of the rule of law —such as whether<br />
government officials are accountable under the law, and whether legal institutions protect<br />
fundamental rights and allow ordinary people access to justice.<br />
Economic Impacts<br />
One important aspect of the rule-of-law initiatives is the study and analysis of the rule of law’s<br />
impact on economic development. The rule-of-law movement cannot be fully successful in<br />
transitional and developing countries without an answer to the question: does the rule of law<br />
matter for economic development or not? Constitutional economics is the study of the<br />
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compatibility of economic and financial decisions within existing constitutional law frameworks,<br />
and such a framework includes government spending on the judiciary, which, in many<br />
transitional and developing countries, is completely controlled by the executive. It is useful to<br />
distinguish between the two methods of corruption of the judiciary: corruption by the executive<br />
branch, in contrast to corruption by private actors.<br />
The standards of constitutional economics can be used during annual budget process, and if that<br />
budget planning is transparent then the rule of law may benefit. The availability of an effective<br />
court system, to be used by the civil society in situations of unfair government spending and<br />
executive impoundment of previously authorized appropriations, is a key element for the success<br />
of the rule-of-law endeavor.<br />
The Rule of Law is especially important as an influence on the economic development in<br />
developing and transitional countries. To date, the term ―rule of law‖ has been used primarily in<br />
the English-speaking countries, and it is not yet fully clarified even with regard to such wellestablished<br />
democracies as, for instance, Sweden, Denmark, France, Germany, or Japan. A<br />
common language between lawyers of common law and civil law countries as well as between<br />
legal communities of developed and developing countries is critically important for research of<br />
links between the rule of law and real economy.<br />
The modern economist F. A. Hayek analyzed how the Rule of Law might be beneficial to the<br />
free market. Hayek proposed that under the Rule of Law individuals would be able to make wise<br />
investments and future plans with some confidence in a successful return on investment when he<br />
stated: "under the Rule of Law the government is prevented from stultifying individual efforts by<br />
ad hoc action. Within the known rules of the game the individual is free to pursue his personal<br />
ends and desires, certain that the powers of government will not be used deliberately to frustrate<br />
his efforts." Hayek defined the Rule of Law as the opposite of arbitrary government: "The<br />
distinction we have drawn before between the creation of a permanent framework of laws within<br />
which the productive activity is guided by individual decisions and the direction of economic<br />
activity by a central authority is thus really a particular case of the more general distinction<br />
between the Rule of Law and arbitrary government. Under the first the government confines<br />
itself to fixing rules determining the conditions under which the available resources may be used,<br />
leaving to the individuals the decision for what ends they are to be used. Under the second the<br />
government directs the use of the means of production to particular ends. The first type of rules<br />
can be made in advance, in the shape of formal rules which do not aim at the wants and needs of<br />
particular people. They are intended to be merely instrumental in the pursuit of people's various<br />
individual ends. And they are, or ought to be, intended for such long periods that it is impossible<br />
to know whether they will assist particular people more than others. They could almost be<br />
described as a kind of instrument of production, helping people to predict the behavior of those<br />
with whom they must collaborate, rather than as efforts toward the satisfaction of particular<br />
needs."<br />
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Rule of Higher Law<br />
The Rule According To A Higher<br />
Law means that no law may be enforced by<br />
the government unless it conforms with<br />
certain universal principles (written or<br />
unwritten) of fairness, morality, and justice.<br />
Thus, the rule according to a higher law may<br />
serve as a practical legal criterion to qualify<br />
the instances of political or economical<br />
decision-making, when a government, even<br />
though acting in conformity with clearly<br />
defined and properly enacted legal rules, still<br />
produces results which many observers find<br />
unfair or unjust.<br />
"Higher law" can be interpreted in this context as the divine or natural law or basic legal values,<br />
established in the international law, – the choice depending on the viewpoint. But this is<br />
definitely a Law above the law. And it is in this capacity that it possesses the equal legal value<br />
for both the common and civil law jurisdictions, as opposed to natural law which is largely<br />
associated with common law. "To recognize the necessary connection between the rule of law as<br />
an ideal and well-constructed constitutional government does not and should not be taken to<br />
imply that all states can or should maintain the same constitutional structures in practice".<br />
The rule according to higher law is a practical approach to the implementation of the higher law<br />
theory which creates a bridge of mutual understanding (with regard to universal legal values)<br />
between the English language doctrine of the rule of law, traditional for the countries of common<br />
law, and the originally German doctrine of Rechtsstaat, translated into other languages of<br />
continental Europe as État de droit (Fr.), Estado de derecho (Sp.), Stato di diritto (It.), and<br />
Правовое государство (Ru.). The latter doctrine is the product of continental European legal<br />
thought which had adopted it from German legal philosophy. Its name can be translated into<br />
English as ―legal state‖ or "state of law" or "state of rights" or "constitutional state" –<br />
consistently meaning the state in which the exercise of governmental power is kept in check by<br />
the higher law rather than by the changeable law established by this state. Amartya Sen<br />
mentioned that the legal theorists in ancient India used term of classical Sanscrit "nyaya" in the<br />
sense of not just a matter of judging institutions and rules, but of judging the societies<br />
themselves.<br />
Before the U.S. Civil War, African Americans were legally denied equal rights and freedoms<br />
pursuant to formally valid codes prescribing the relations between master and slave. Although<br />
these codes were de jure fully suitable for application in legal practice, their enforcement by the<br />
then U.S. government de facto violated basic human rights of a significant part of the population.<br />
William H. Seward famously proclaimed that slavery is forbidden under "a higher law than the<br />
Constitution."<br />
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Generally speaking, the occurrence of such "justly enacted unjust laws" fully depends on the<br />
stance taken by the country's political leadership towards the rule of law principle.<br />
In some countries, the political leaders assert that the rule of law is purely a procedural concept.<br />
Therefore, they argue that any government may strip its subjects of their fundamental freedoms<br />
or infringe their vital interests so long as this is done by way of a duly implemented legal<br />
mechanism. For example, at the Nuremberg trials, in an attempt to justify their crimes against<br />
Jewish and Romany population of Europe during World War II, some of the former leaders of<br />
Nazi Germany argued that they had broken none of the laws effective when Hitler had been in<br />
power. It was only by invoking the rule according to a higher law that the Allied prosecutors<br />
were able to legitimately overcome such defenses.<br />
In other countries, conversely, the political leaders assert that all written laws must be kept in<br />
line with the universal principles of morality, fairness, and justice. These leaders argue that, as a<br />
necessary corollary to the axiom that "no one is above the law," the rule of law requires the<br />
government to treat all persons equally under the law. However, the proclaimed right to equal<br />
treatment is susceptible to instantly becoming void each time the government denies a sufficient<br />
level of respect, dignity, and autonomy to a certain class of individuals or to human rights in<br />
general." Therefore, the unwritten and universally self-explanatory principles of equality,<br />
autonomy, dignity, and respect are said to overrule conventional written laws enacted by the<br />
government. It is these principles that are often referred to as "natural law." They also constitute<br />
the basis of the "higher law theory."<br />
Constitutional Governance<br />
The Rechtsstaat doctrine (Legal state, State of right, Constitutional state, Constitutional<br />
government) was first introduced by the German philosopher Immanuel Kant in his latest works<br />
completed after the U.S. and French constitutions had been adopted in the late 18th century.<br />
Kant’s approach is based on the supremacy of country’s written constitution created using<br />
principles of the Higher Law. This supremacy meant creating guarantees for the implementation<br />
of his central idea: a permanently peaceful life as a basic condition for the happiness and<br />
prosperity of the citizens. Kant was basing his doctrine exclusively on the idea of<br />
constitutionalism and constitutional government.<br />
Kant had formulated the main problem of constitutionalism as an instrument for the practical<br />
implementation of the Higher Law as follows, ―The constitution of a state is eventually based on<br />
the morals of its citizens, which, in its turn, is based on the goodness of this constitution.‖ This<br />
idea of Kant’s has become the foundation for the constitutional theory of the 21st century. The<br />
Legal state concept is based on the ideas introduced by Immanuel Kant, for example, in his<br />
Groundwork of the Metaphysic of Morals:<br />
―The task of establishing a universal and permanent peaceful life is not only a part of theory of<br />
law within the framework of pure reason, but per se an absolute and ultimate goal. To achieve<br />
this goal, a state must become the community of a large number of people, living provided with<br />
legislative guarantees of their property rights secured by a common constitution. The supremacy<br />
of this constitution… must be derived a priori from the considerations for achievement of the<br />
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absolute ideal in the most just and fair organization of people’s life under the aegis of public<br />
law.‖<br />
The Russian legal system, born in the 19th century as a result of the transformations initiated by<br />
the reforms of the Emperor Alexander II, was (and still is) based primarily upon the German<br />
legal tradition. It was from the latter that Russia had adopted the doctrine of Rechtsstaat, which<br />
literally translates as "Legal State." Its closest English analogue is "the rule of law." The Russian<br />
Legal state concept adopts the written constitution as the country's supreme law (the rule of<br />
constitution). It is a fundamental but undefined principle that appears in the very first dispositive<br />
provision of Russia’s post-Communist constitution: "The Russian Federation – Russia –<br />
constitutes a democratic federative legal state with a republican form of governance." Similarly,<br />
the very first dispositive provision of Ukraine’s Constitution declares that "Ukraine is a<br />
sovereign and independent, democratic, social, legal state." Hence, the effort to invest meaning<br />
to the "Legal State" definition is anything but theoretical.<br />
Valery Zorkin, President of the Constitutional Court of Russia, wrote in 2003, "Becoming a legal<br />
state has long been our ultimate goal, and we have certainly made serious progress in this<br />
direction over the past several years. However, no one can say now that we have reached this<br />
destination. Such a legal state simply cannot exist without a lawful and just society. Here, as in<br />
no other sphere of our life, the state reflects the level of maturity reached by the society."<br />
The Russian concept of Legal state has adopted many segments of constitutional economics<br />
which serves as a practical implementation of the higher law theory in economics.<br />
Economist James M. Buchanan argues that, in the framework of constitutional government, any<br />
governmental intervention or regulation must be conditioned by the three following assumptions.<br />
First, every failure of the market economy to function smoothly and perfectly can be corrected<br />
by governmental intervention. Second, those holding political office and manning the<br />
bureaucracies are altruistic upholders of the public interest, unconcerned with their own personal<br />
economic well-being. And third, changing the government responsibilities towards more<br />
intervention and control will not profoundly and perversely affect the social and economic life.<br />
Buchanan rejects "any organic conception of the state as superior in wisdom, to the individuals<br />
who are its members." This philosophical position is, in fact, the very subject matter of<br />
constitutional economics. A constitutional economics approach allows for a combined economic<br />
and constitutional analysis, helping to avoid a one-dimensional understanding. Buchanan,<br />
together with Kant, believes that a constitution in its capacity as the Higher Law, intended for<br />
use by at least several generations of citizens, must be able to adjust itself for pragmatic<br />
economic decisions, while balancing interests of the state and society against those of<br />
individuals, with their constitutional rights to personal freedom and private happiness.<br />
Buchanan also outlines importance of protection of the moral principles underlying<br />
constitutional norms. He writes that "the ethics of constitutional citizenship is not directly<br />
comparable to ethical behavior in interaction with other persons within the constraints imposed<br />
by the rules of an existing regime. An individual may be fully responsible, in the standard ethical<br />
sense, and yet fail to meet the ethical requirement of constitutional citizenship." [<br />
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Political Corruption of The Judiciary<br />
Political Corruption is the use of powers by government<br />
officials for illegitimate private gain. An illegal act by an<br />
officeholder constitutes political corruption only if the act is<br />
directly related to their official duties, is done under color of<br />
law or involves trading in influence.<br />
Forms of corruption vary, but include bribery, extortion,<br />
cronyism, nepotism, patronage, graft, and embezzlement.<br />
Corruption may facilitate criminal enterprise such as drug<br />
trafficking, money laundering, and human trafficking, though is not restricted to these activities.<br />
Misuse of government power for other purposes, such as repression of political opponents and<br />
general police brutality, is not considered political corruption. Neither are illegal acts by private<br />
persons or corporations not directly involved with the government.<br />
The activities that constitute illegal corruption differ depending on the country or jurisdiction.<br />
For instance, some political funding practices that are legal in one place may be illegal in<br />
another. In some cases, government officials have broad or ill-defined powers, which make it<br />
difficult to distinguish between legal and illegal actions. Worldwide, bribery alone is estimated<br />
to involve over 1 trillion US dollars annually. A state of unrestrained political corruption is<br />
known as a kleptocracy, literally meaning "rule by thieves".<br />
Some forms of corruption – now called "institutional corruption" – are distinguished from<br />
bribery and other kinds of obvious personal gain. A similar problem of corruption arises in any<br />
institution that depends on financial support from people who have interests that may conflict<br />
with the primary purpose of the institution.<br />
<strong>Judicial</strong> Corruption<br />
There are two methods of corruption of the judiciary: the state (through budget planning and<br />
various privileges), and the private. Budget of the judiciary in many transitional and developing<br />
countries is almost completely controlled by the executive. The latter undermines the separation<br />
of powers, as it creates a critical financial dependence of the judiciary. The proper national<br />
wealth distribution including the government spending on the judiciary is subject of the<br />
constitutional economics.<br />
Effects on Politics, Administration, and Institutions<br />
In politics, corruption undermines democracy and good governance by flouting or even<br />
subverting formal processes. Corruption in elections and in the legislature reduces accountability<br />
and distorts representation in policymaking; corruption in the judiciary compromises the rule of<br />
law; and corruption in public administration results in the inefficient provision of services. It<br />
violates a basic principle of republicanism regarding the centrality of civic virtue. More<br />
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generally, corruption erodes the institutional capacity of government if procedures are<br />
disregarded, resources are siphoned off, and public offices are bought and sold. Corruption<br />
undermines the legitimacy of government and such democratic values as trust and tolerance.<br />
Recent evidence suggests that variation in the levels of corruption amongst high-income<br />
democracies can vary significantly depending on the level of accountability of decision-makers.<br />
Evidence from fragile states also shows that corruption and bribery can adversely impact trust in<br />
institutions.<br />
Economic Effects<br />
In the private sector, corruption increases the cost of business through the price of illicit<br />
payments themselves, the management cost of negotiating with officials and the risk of breached<br />
agreements or detection. Although some claim corruption reduces costs by cutting bureaucracy,<br />
the availability of bribes can also induce officials to contrive new rules and delays. Openly<br />
removing costly and lengthy regulations are better than covertly allowing them to be bypassed by<br />
using bribes. Where corruption inflates the cost of business, it also distorts the playing field,<br />
shielding firms with connections from competition and thereby sustaining inefficient firms.<br />
Corruption also generates economic distortions in the public sector by diverting public<br />
investment into capital projects where bribes and kickbacks are more plentiful. Officials may<br />
increase the technical complexity of public sector projects to conceal or pave the way for such<br />
dealings, thus further distorting investment. Corruption also lowers compliance with<br />
construction, environmental, or other regulations, reduces the quality of government services and<br />
infrastructure, and increases budgetary pressures on government.<br />
Economists argue that one of the factors behind the differing economic development in Africa<br />
and Asia is that in Africa, corruption has primarily taken the form of rent extraction with the<br />
resulting financial capital moved overseas rather than invested at home (hence the stereotypical,<br />
but often accurate, image of African dictators having Swiss bank accounts). In Nigeria, for<br />
example, more than $400 billion was stolen from the treasury by Nigeria's leaders between 1960<br />
and 1999. University of Massachusetts Amherst researchers estimated that from 1970 to 1996,<br />
capital flight from 30 Sub-Saharan countries totaled $187bn, exceeding those nations' external<br />
debts. (The results, expressed in retarded or suppressed development, have been modeled in<br />
theory by economist Mancur Olson.) In the case of Africa, one of the factors for this behavior<br />
was political instability, and the fact that new governments often confiscated previous<br />
government's corruptly obtained assets. This encouraged officials to stash their wealth abroad,<br />
out of reach of any future expropriation. In contrast, Asian administrations such as Suharto's<br />
New Order often took a cut on business transactions or provided conditions for development,<br />
through infrastructure investment, law and order, etc.<br />
Environmental and Social Effect<br />
Corruption is often most evident in countries with the smallest per capita incomes, relying on<br />
foreign aid for health services. However, political exploitation of these funds have been noted to<br />
occur in the past, especially in the Sub-Saharan African nations, where it was reported in the<br />
2006 World Bank Report that about half of the funds that were donated for health usages, were<br />
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never invested into the health sectors or given to those needing medical attention. Instead, they<br />
were expended through "counterfeit drugs, siphoning off of drugs to the black market, and<br />
payments to ghost employees". Ultimately, there is a sufficient amount of money for health in<br />
developing countries, but this cash is given to the wrong hands, which leads to political and<br />
governmental corruption that takes away medical attention necessary for the citizens of these<br />
regions, and rather, used for personal gain.<br />
Corruption facilitates environmental destruction. Corrupt countries may formally have legislation<br />
to protect the environment, it cannot be enforced if officials can easily be bribed. The same<br />
applies to social rights worker protection, unionization prevention, and child labor. Violation of<br />
these laws rights enables corrupt countries to gain illegitimate economic advantage in the<br />
international market.<br />
The Nobel Prize-winning economist<br />
Amartya Sen has observed that<br />
"there is no such thing as an<br />
apolitical food problem."<br />
While drought and other naturally occurring<br />
events may trigger famine conditions, it is<br />
government action or inaction that<br />
determines its severity, and often<br />
even whether or not a famine will occur.<br />
Governments with strong tendencies<br />
towards kleptocracy can undermine food<br />
security even when harvests are good.<br />
Officials often steal state property. In Bihar,<br />
India, more than 80% of<br />
the subsidized food aid to<br />
poor is stolen by corrupt<br />
officials. Similarly, food<br />
aid is often robbed at gunpoint by governments, criminals,<br />
and warlords alike, and sold for a<br />
profit. The 20th century is full of<br />
many examples of governments undermining the food security of their own nations – sometimes<br />
intentionally.<br />
Effects on Humanitarian Aid<br />
The scale of humanitarian aid to the poor and unstable regions of the world grows, but it is<br />
highly vulnerable to corruption, with food aid, construction and other highly valued assistance as<br />
the most at risk. Food aid can be directly and physically diverted from its intended destination, or<br />
indirectly through the manipulation of assessments, targeting, registration and distributions to<br />
favor certain groups or individuals. Elsewhere, in construction and shelter, there are numerous<br />
opportunities for diversion and profit through substandard workmanship, kickbacks for contracts<br />
and favoritism in the provision of valuable shelter material. Thus while humanitarian aid<br />
agencies are usually most concerned about aid being diverted by including too many, recipients<br />
themselves are most concerned about exclusion. Access to aid may be limited to those with<br />
connections, to those who pay bribes or are forced to give sexual favors. Equally, those able to<br />
do so may manipulate statistics to inflate the number of beneficiaries and siphon off additional<br />
assistance.<br />
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Other Areas: Health, Public Safety, Education, Trade Unions, Etc.<br />
Corruption is not specific to poor, developing, or transition countries. In western countries, cases<br />
of bribery and other forms of corruption in all possible fields exist: under-the-table payments<br />
made to reputed surgeons by patients attempting to be on top of the list of forthcoming surgeries,<br />
bribes paid by suppliers to the automotive industry in order to sell low-quality connectors used<br />
for instance in safety equipment such as airbags, bribes paid by suppliers to manufacturers of<br />
defibrillators (to sell low-quality capacitors), contributions paid by wealthy parents to the "social<br />
and culture fund" of a prestigious university in exchange for it to accept their children, bribes<br />
paid to obtain diplomas, financial and other advantages granted to unionists by members of the<br />
executive board of a car manufacturer in exchange for employer-friendly positions and votes,<br />
etc. Examples are endless. These various manifestations of corruption can ultimately present a<br />
danger for the public health; they can discredit specific, essential institutions or social<br />
relationships.<br />
Corruption can also affect the various components of sports activities (referees, players, medical<br />
and laboratory staff involved in anti-doping controls, members of national sport federation and<br />
international committees deciding about the allocation of contracts and competition places).<br />
Cases exist against (members of) various types of non-profit and non-government organizations,<br />
as well as religious organizations.<br />
Ultimately, the distinction between public and private sector corruption sometimes appears rather<br />
artificial, and national anti-corruption initiatives may need to avoid legal and other loopholes in<br />
the coverage of the instruments.<br />
Types of Corruption<br />
Bribery<br />
A bribe is a payment given personally to a government official in exchange of his use of official<br />
powers. Bribery requires two participants: one to give the bribe, and one to take it. Either may<br />
initiate the corrupt offering; for example, a customs official may demand bribes to let through<br />
allowed (or disallowed) goods, or a smuggler might offer bribes to gain passage. In some<br />
countries the culture of corruption extends to every aspect of public life, making it extremely<br />
difficult for individuals to stay in business without resorting to bribes. Bribes may be demanded<br />
in order for an official to do something he is already paid to do. They may also be demanded in<br />
order to bypass laws and regulations. In addition to using bribery for private financial gain, they<br />
are also used to intentionally and maliciously cause harm to another (i.e. no financial incentive).<br />
In some developing nations, up to half of the population has paid bribes during the past 12<br />
months.<br />
In recent years, efforts have been made by the international community to encourage countries to<br />
dissociate and incriminate as separate offences, active and passive bribery. Active bribery can be<br />
defined for instance as the promising, offering or giving by any person, directly or indirectly, of<br />
any undue advantage [to any public official], for himself or herself or for anyone else, for him or<br />
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her to act or refrain from acting in the exercise of his or her<br />
functions. (article 2 of the Criminal Law Convention on<br />
Corruption (ETS 173) of the Council of Europe). Passive<br />
bribery can be defined as the request or receipt [by any<br />
public official], directly or indirectly, of any undue<br />
advantage, for himself or herself or for anyone else, or the<br />
acceptance of an offer or a promise of such an advantage,<br />
to act or refrain from acting in the exercise of his or her<br />
functions (article 3 of the Criminal Law Convention on<br />
Corruption (ETS 173)). The reason for this dissociation is<br />
to make the early steps (offering, promising, requesting an<br />
advantage) of a corrupt deal already an offence and, thus, to<br />
give a clear signal (from a criminal policy point of view)<br />
that bribery is not acceptable. Furthermore, such a<br />
dissociation makes the prosecution of bribery offences<br />
easier since it can be very difficult to prove that two parties<br />
(the bribe-giver and the bribe-taker) have formally agreed<br />
upon a corrupt deal. In addition, there is often no such<br />
formal deal but only a mutual understanding, for instance<br />
when it is common knowledge in a municipality that to obtain a building permit one has to pay a<br />
"fee" to the decision maker to obtain a favorable decision. A working definition of corruption is<br />
also provided as follows in article 3 of the Civil Law Convention on Corruption (ETS 174):<br />
For the purpose of this Convention, "corruption" means requesting, offering, giving or accepting, directly<br />
or indirectly, a bribe or any other undue advantage or prospect thereof, which distorts the proper<br />
performance of any duty or behavior required of the recipient of the bribe, the undue advantage or the<br />
prospect thereof.<br />
Trading in Influence<br />
Trading in influence, or influence peddling, refers a person selling his/her influence over the<br />
decision making process to benefit a third party (person or institution). The difference with<br />
bribery is that this is a tri-lateral relation. From a legal point of view, the role of the third party<br />
(who is the target of the influence) does not really matter although he/she can be an accessory in<br />
some instances. It can be difficult to make a distinction between this form of corruption and<br />
some forms of extreme and loosely regulated lobbying where for instance law- or decisionmakers<br />
can freely "sell" their vote, decision power or influence to those lobbyists who offer the<br />
highest compensation, including where for instance the latter act on behalf of powerful clients<br />
such as industrial groups who want to avoid the passing of specific environmental, social, or<br />
other regulations perceived as too stringent, etc. Where lobbying is (sufficiently) regulated, it<br />
becomes possible to provide for a distinctive criteria and to consider that trading in influence<br />
involves the use of "improper influence", as in article 12 of the Criminal Law Convention on<br />
Corruption (ETS 173) of the Council of Europe.<br />
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Patronage<br />
Patronage refers to favoring supporters, for example with government employment. This may be<br />
legitimate, as when a newly elected government changes the top officials in the administration in<br />
order to effectively implement its policy. It can be seen as corruption if this means that<br />
incompetent persons, as a payment for supporting the regime, are selected before more able ones.<br />
In nondemocracies many government officials are often selected for loyalty rather than ability.<br />
They may be almost exclusively selected from a particular group (for example, Sunni Arabs in<br />
Saddam Hussein's Iraq, the nomenklatura in the Soviet Union, or the Junkers in Imperial<br />
Germany) that support the regime in return for such favors. A similar problem can also be seen<br />
in Eastern Europe, for example in Romania, where the government is often accused of patronage<br />
(when a new government comes to power it rapidly changes most of the officials in the public<br />
sector).<br />
Nepotism and Cronyism<br />
Favoring relatives (nepotism) or personal friends (cronyism) of an official is a form of<br />
illegitimate private gain. This may be combined with bribery, for example demanding that a<br />
business should employ a relative of an official controlling regulations affecting the business.<br />
The most extreme example is when the entire state is inherited, as in North Korea or Syria. A<br />
lesser form might be in the Southern United States with Good ol' boys, where women and<br />
minorities are excluded. A milder form of cronyism is an "old boy network", in which appointees<br />
to official positions are selected only from a closed and exclusive social network – such as the<br />
alumni of particular universities – instead of appointing the most competent candidate.<br />
Seeking to harm enemies becomes corruption when official powers are illegitimately used as<br />
means to this end. For example, trumped-up charges are often brought up against journalists or<br />
writers who bring up politically sensitive issues, such as a politician's acceptance of bribes.<br />
Electoral Fraud<br />
Electoral fraud is illegal interference with the process of an election. Acts of fraud affect vote<br />
counts to bring about an election result, whether by increasing the vote share of the favored<br />
candidate, depressing the vote share of the rival candidates, or both. Also called voter fraud, the<br />
mechanisms involved include illegal voter registration, intimidation at polls, and improper vote<br />
counting.<br />
Embezzlement<br />
Embezzlement is theft of entrusted funds. It is political when it involves public money taken by a<br />
public official for use by anyone not specified by the public. A common type of embezzlement is<br />
that of personal use of entrusted government resources; for example, when an official assigns<br />
public employees to renovate his own house.<br />
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Kickbacks<br />
A kickback is an official's share of misappropriated funds allocated from his or her organization<br />
to an organization involved in corrupt bidding. For example, suppose that a politician is in<br />
charge of choosing how to spend some public funds. He can give a contract to a company that is<br />
not the best bidder, or allocate more than they deserve. In this case, the company benefits, and in<br />
exchange for betraying the public, the official receives a kickback payment, which is a portion of<br />
the sum the company received. This sum itself may be all or a portion of the difference between<br />
the actual (inflated) payment to the company and the (lower) market-based price that would have<br />
been paid had the bidding been competitive.<br />
Another example of a kickback would be if a judge receives a portion of the profits that a<br />
business makes in exchange for his judicial decisions.<br />
Kickbacks are not limited to government officials; any situation in which people are entrusted to<br />
spend funds that do not belong to them are susceptible to this kind of corruption.<br />
Unholy Alliance<br />
An unholy alliance is a coalition among seemingly antagonistic groups for ad hoc or hidden gain,<br />
generally some influential non-governmental group forming ties with political parties, supplying<br />
funding in exchange for the favorable treatment. Like patronage, unholy alliances are not<br />
necessarily illegal, but unlike patronage, by its deceptive nature and often great financial<br />
resources, an unholy alliance can be much more dangerous to the public interest. An early use of<br />
the term was by former US President Theodore "Teddy" Roosevelt:<br />
"To destroy this invisible Government, to dissolve the unholy alliance between corrupt<br />
business and corrupt politics is the first task of the statesmanship of the day." – 1912<br />
Progressive Party Platform, attributed to Roosevelt and quoted again in his<br />
autobiography, where he connects trusts and monopolies (sugar interests, Standard Oil,<br />
etc.) to Woodrow Wilson, Howard Taft, and consequently both major political parties.<br />
Involvement in organized crime<br />
An illustrative example of official involvement in organized crime can be found from 1920s and<br />
1930s Shanghai, where Huang Jinrong was a police chief in the French concession, while<br />
simultaneously being a gang boss and co-operating with Du Yuesheng, the local gang ringleader.<br />
The relationship kept the flow of profits from the gang's gambling dens, prostitution, and<br />
protection rackets undisturbed.<br />
The United States accused Manuel Noriega's government in Panama of being a<br />
"narcokleptocracy", a corrupt government profiting on illegal drug trade. Later the U.S. invaded<br />
Panama and captured Noriega.<br />
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Conditions Favorable for Corruption<br />
It is argued that the following conditions are favorable for corruption:<br />
<br />
Information deficits<br />
o<br />
o<br />
o<br />
o<br />
o<br />
o<br />
Lacking freedom of information legislation. For example: The Indian Right to<br />
Information Act 2005 is perceived to have "already engendered mass movements<br />
in the country that is bringing the lethargic, often corrupt bureaucracy to its knees<br />
and changing power equations completely."<br />
Lack of investigative reporting in the local media.<br />
Contempt for or negligence of exercising freedom of speech and freedom of the<br />
press.<br />
Weak accounting practices, including lack of timely financial management.<br />
Lack of measurement of corruption. For example, using regular surveys of<br />
households and businesses in order to quantify the degree of perception of<br />
corruption in different parts of a nation or in different government institutions<br />
may increase awareness of corruption and create pressure to combat it. This will<br />
also enable an evaluation of the officials who are fighting corruption and the<br />
methods used.<br />
Tax havens which tax their own citizens and companies but not those from other<br />
nations and refuse to disclose information necessary for foreign taxation. This<br />
enables large-scale political corruption in the foreign nations.<br />
<br />
Lacking control of the government.<br />
o<br />
o<br />
o<br />
o<br />
o<br />
o<br />
o<br />
o<br />
o<br />
Lacking civic society and non-governmental organizations which monitor the<br />
government.<br />
An individual voter may have a rational ignorance regarding politics, especially in<br />
nationwide elections, since each vote has little weight.<br />
Weak civil service, and slow pace of reform.<br />
Weak rule of law.<br />
Weak legal profession.<br />
Weak judicial independence.<br />
Lacking protection of whistleblowers.<br />
• Government Accountability Project<br />
Lack of benchmarking, that is continual detailed evaluation of procedures and<br />
comparison to others who do similar things, in the same government or others, in<br />
particular comparison to those who do the best work. The Peruvian organization<br />
Ciudadanos al Dia has started to measure and compare transparency, costs, and<br />
efficiency in different government departments in Peru. It annually awards the<br />
best practices which has received widespread media attention. This has created<br />
competition among government agencies in order to improve.<br />
Individual officials routinely handle cash, instead of handling payments by giro or<br />
on a separate cash desk – illegitimate withdrawals from supervised bank accounts<br />
are much more difficult to conceal.<br />
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o<br />
o<br />
o<br />
o<br />
o<br />
o<br />
o<br />
o<br />
o<br />
o<br />
Public funds are centralized rather than distributed. For example, if $1,000 is<br />
embezzled from a local agency that has $2,000 funds, it is easier to notice than<br />
from a national agency with $2,000,000 funds. See the principle of subsidiarity.<br />
Large, unsupervised public investments.<br />
Pay disproportionately lower than that of the average citizen.<br />
Government licenses needed to conduct business, e.g., import licenses, encourage<br />
bribing and kickbacks.<br />
Long-time work in the same position may create relationships inside and outside<br />
the government which encourage and help conceal corruption and favoritism.<br />
Rotating government officials to different positions and geographic areas may<br />
help prevent this; for instance certain high rank officials in French government<br />
services (e.g. treasurer-paymasters general) must rotate every few years.<br />
Costly political campaigns, with expenses exceeding normal sources of political<br />
funding, especially when funded with taxpayer money.<br />
A single group or family controlling most of the key government offices. Lack of<br />
laws forbidding and limiting number of members of the same family to be in<br />
office .<br />
Less interaction with officials reduces the opportunities for corruption. For<br />
example, using the Internet for sending in required information, like applications<br />
and tax forms, and then processing this with automated computer systems. This<br />
may also speed up the processing and reduce unintentional human errors. See e-<br />
Government.<br />
A windfall from exporting abundant natural resources may encourage corruption.<br />
War and other forms of conflict correlate with a breakdown of public security.<br />
<br />
Social conditions<br />
o Self-interested closed cliques and "old boy networks".<br />
o Family-, and clan-centered social structure, with a tradition of<br />
nepotism/favouritism being acceptable.<br />
o A gift economy, such as the Soviet blat system, emerges in a Communist centrally<br />
planned economy.<br />
o Lacking literacy and education among the population.<br />
o Frequent discrimination and bullying among the population.<br />
o Tribal solidarity, giving benefits to certain ethnic groups. In India for example,<br />
the political system, it has become common that the leadership of national and<br />
regional parties are passed from generation to generation.<br />
o creating a system in which a family holds the center of power. Some examples are<br />
most of the Dravidian parties of south India and also the Congress party, which is<br />
one of the two major political parties in India.<br />
o Lack of strong laws which forbid members of the same family to contest elections<br />
and be in office as in India where local elections are often contested between<br />
members of the same powerful family by standing in opposite parties so that<br />
whoever is elected that particular family is at tremendous benefit.<br />
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Media<br />
Thomas Jefferson observed a tendency for "The functionaries of every government ... to<br />
command at will the liberty and property of their constituents. There is no safe deposit [for<br />
liberty and property] ... without information. Where the press is free, and every man able to read,<br />
all is safe."<br />
Recent research supports Jefferson's claim. Brunetti and Weder found "evidence of a significant<br />
relationship between more press freedom and less corruption in a large cross-section of<br />
countries." They also presented "evidence which suggests that the direction of causation runs<br />
from higher press freedom to lower corruption." Adserà, Boix, and Payne found that increases in<br />
newspaper readership led to increased political accountability and lower corruption in data from<br />
roughly 100 countries and from different states in the US.<br />
Snyder and Strömberg found "that a poor fit between newspaper markets and political districts<br />
reduces press coverage of politics. ... Congressmen who are less covered by the local press work<br />
less for their constituencies: they are less likely to stand witness before congressional hearings ...<br />
. Federal spending is lower in areas where there is less press coverage of the local members of<br />
congress." Schulhofer-Wohl and Garrido found that the year after the Cincinnati Post closed in<br />
2007, "fewer candidates ran for municipal office in the Kentucky suburbs most reliant on the<br />
Post, incumbents became more likely to win reelection, and voter turnout and campaign<br />
spending fell.<br />
An analysis of the evolution of mass media in the US and Europe since World War II noted<br />
mixed results from the growth of the Internet: "The digital revolution has been good for freedom<br />
of expression [and] information [but] has had mixed effects on freedom of the press": It has<br />
disrupted traditional sources of funding, and new forms of Internet journalism have replaced only<br />
a tiny fraction of what's been lost.<br />
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Size of Public Sector<br />
Extensive and diverse public spending is, in itself, inherently at risk of cronyism, kickbacks, and<br />
embezzlement. Complicated regulations and arbitrary, unsupervised official conduct exacerbate<br />
the problem. This is one argument for privatization and deregulation. Opponents of privatization<br />
see the argument as ideological. The argument that corruption necessarily follows from the<br />
opportunity is weakened by the existence of countries with low to non-existent corruption but<br />
large public sectors, like the Nordic countries. However, these countries score high on the Ease<br />
of Doing Business Index, due to good and often simple regulations, and have rule of law firmly<br />
established. Therefore, due to their lack of corruption in the first place, they can run large public<br />
sectors without inducing political corruption. Recent evidence that takes both the size of<br />
expenditures and regulatory complexity into account has found that high-income democracies<br />
with more expansive state sectors do indeed have higher levels of corruption.<br />
Like other governmental economic activities, also privatization, such as in the sale of<br />
government-owned property, is particularly at the risk of cronyism. Privatizations in Russia,<br />
Latin America, and East Germany were accompanied by large-scale corruption during the sale of<br />
the state owned companies. Those with political connections unfairly gained large wealth, which<br />
has discredited privatization in these regions. While media have reported widely the grand<br />
corruption that accompanied the sales, studies have argued that in addition to increased operating<br />
efficiency, daily petty corruption is, or would be, larger without privatization, and that corruption<br />
is more prevalent in non-privatized sectors. Furthermore, there is evidence to suggest that<br />
extralegal and unofficial activities are more prevalent in countries that privatized less.<br />
There is the counterpoint, however, that industries with an oligarchy of companies can be quite<br />
corrupt, with collusive price-fixing, pressuring dependent businesses, etc., and only by having a<br />
portion of the market owned by someone other than that oligarchy, i.e. public sector, can keep<br />
them in line. If the public sector company is making money and selling their product for half of<br />
the price of the private sector companies, the private sector companies won't be able to<br />
simultaneously gouge to that degree and keep their customers: the competition keeps them in<br />
line. Private sector corruption can increase the poverty and helplessness of the population, so it<br />
can affect government corruption, in the long-term.<br />
In the European Union, the principle of subsidiarity is applied: a government service should be<br />
provided by the lowest, most local authority that can competently provide it. An effect is that<br />
distribution of funds into multiple instances discourages embezzlement, because even small sums<br />
missing will be noticed. In contrast, in a centralized authority, even minute proportions of public<br />
funds can be large sums of money.<br />
Governmental Corruption<br />
If the highest echelons of the governments also take advantage from corruption or embezzlement<br />
from the state's treasury, it is sometimes referred with the neologism kleptocracy. Members of<br />
the government can take advantage of the natural resources (e.g., diamonds and oil in a few<br />
prominent cases) or state-owned productive industries. A number of corrupt governments have<br />
enriched themselves via foreign aid, which is often spent on showy buildings and armaments.<br />
Page 86 of 115
A corrupt dictatorship typically results in many years of general hardship and suffering for the<br />
vast majority of citizens as civil society and the rule of law disintegrate. In addition, corrupt<br />
dictators routinely ignore economic and social problems in their quest to amass ever more wealth<br />
and power.<br />
The classic case of a corrupt, exploitive dictator often given is the regime of Marshal Mobutu<br />
Sese Seko, who ruled the Democratic Republic of the Congo (which he renamed Zaire) from<br />
1965 to 1997. It is said that usage of the term kleptocracy gained popularity largely in response<br />
to a need to accurately describe Mobutu's regime. Another classic case is Nigeria, especially<br />
under the rule of General Sani Abacha who was de facto president of Nigeria from 1993 until his<br />
death in 1998. He is reputed to have stolen some US$3–4 billion. He and his relatives are often<br />
mentioned in Nigerian 419 letter scams claiming to offer vast fortunes for "help" in laundering<br />
his stolen "fortunes", which in reality turn out not to exist. More than $400 billion was stolen<br />
from the treasury by Nigeria's leaders between 1960 and 1999.<br />
More recently, articles in various financial periodicals, most notably Forbes magazine, have<br />
pointed to Fidel Castro, General Secretary of the Republic of Cuba since 1959, of likely being<br />
the beneficiary of up to $900 million, based on "his control" of state-owned companies.<br />
Opponents of his regime claim that he has used money amassed through weapons sales,<br />
narcotics, international loans, and confiscation of private property to enrich himself and his<br />
political cronies who hold his dictatorship together, and that the $900 million published by<br />
Forbes is merely a portion of his assets, although that needs to be proven.<br />
Opposition and Measurement<br />
Mobile telecommunications and radio broadcasting help to fight corruption, especially in<br />
developing regions like Africa, where other forms of communications are limited. In India, the<br />
anti-corruption bureau fights against corruption, and a new ombudsman bill called Jan Lokpal<br />
Bill is being prepared.<br />
In the 1990s, initiatives were taken at an international level (in particular by the European<br />
Community, the Council of Europe, the OECD) to put a ban on corruption: in 1996, the<br />
Committee of Ministers of the Council of Europe, for instance, adopted a comprehensive<br />
Program of Action against Corruption and, subsequently, issued a series of anti-corruption<br />
standard-setting instruments:<br />
the Criminal Law Convention on Corruption (ETS 173);<br />
the Civil Law Convention on Corruption (ETS 174);<br />
the Additional Protocol to the Criminal Law Convention on Corruption (ETS 191);<br />
the Twenty Guiding Principles for the Fight against Corruption (Resolution (97) 24);<br />
the Recommendation on Codes of Conduct for Public Officials (Recommendation No. R<br />
(2000) 10);<br />
the Recommendation on Common Rules against Corruption in the Funding of Political<br />
Parties and Electoral Campaigns (Rec(2003)4)<br />
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The purpose of these instruments was to address the various forms of corruption (involving the<br />
public sector, the private sector, the financing of political activities, etc.) whether they had a<br />
strictly domestic or also a transnational dimension. To monitor the implementation at national<br />
level of the requirements and principles provided in those texts, a monitoring mechanism – the<br />
Group of States Against Corruption (also known as GRECO) (French: Groupe d'Etats contre la<br />
corruption) was created.<br />
Further conventions were adopted at the regional level under the aegis of the Organization of<br />
American States (OAS or OEA), the African Union, and in 2003, at the universal level under that<br />
of the United Nations Convention against Corruption.<br />
The Global Integrity Index<br />
Measuring corruption statistically is difficult if not impossible due to the illicit nature of the<br />
transaction and imprecise definitions of corruption. While "corruption" indices first appeared in<br />
1995 with the Corruption Perceptions Index CPI, all of these metrics address different proxies<br />
for corruption, such as public perceptions of the extent of the problem.<br />
Transparency International, an anti-corruption NGO, pioneered this field with the CPI, first<br />
released in 1995. This work is often credited with breaking a taboo and forcing the issue of<br />
corruption into high level development policy discourse. Transparency International currently<br />
publishes three measures, updated annually: a CPI (based on aggregating third-party polling of<br />
public perceptions of how corrupt different countries are); a Global Corruption Barometer (based<br />
on a survey of general public attitudes toward and experience of corruption); and a Bribe Payers<br />
Index, looking at the willingness of foreign firms to pay bribes. The Corruption Perceptions<br />
Index is the best known of these metrics, though it has drawn much criticism and may be<br />
declining in influence. In 2013 Transparency International published a report on the<br />
"Government Defence Anti-corruption Index". This index evaluates the risk of corruption in<br />
countries' military sector.<br />
The World Bank collects a range of data on corruption, including survey responses from over<br />
100,000 firms worldwide and a set of indicators of governance and institutional quality.<br />
Moreover, one of the six dimensions of governance measured by the Worldwide Governance<br />
Indicators is Control of Corruption, which is defined as "the extent to which power is exercised<br />
for private gain, including both petty and grand forms of corruption, as well as 'capture' of the<br />
state by elites and private interests." While the definition itself is fairly precise, the data<br />
aggregated into the Worldwide Governance Indicators is based on any available polling:<br />
questions range from "is corruption a serious problem?" to measures of public access to<br />
information, and not consistent across countries. Despite these weaknesses, the global coverage<br />
of these datasets has led to their widespread adoption, most notably by the Millennium Challenge<br />
Corporation.<br />
A number of parties have collected survey data, from the public and from experts, to try and<br />
gauge the level of corruption and bribery, as well as its impact on political and economic<br />
outcomes. A second wave of corruption metrics has been created by Global Integrity, the<br />
International Budget Partnership, and many lesser known local groups. These metrics include the<br />
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Global Integrity Index, first published in 2004. These second wave projects aim to create policy<br />
change by identifying resources more effectively and creating checklists toward incremental<br />
reform. Global Integrity and the International Budget Partnership each dispense with public<br />
surveys and instead uses in-country experts to evaluate "the opposite of corruption" – which<br />
Global Integrity defines as the public policies that prevent, discourage, or expose corruption.<br />
These approaches compliment the first wave, awareness-raising tools by giving governments<br />
facing public outcry a checklist which measures concrete steps toward improved governance.<br />
Typical second wave corruption metrics do not offer the worldwide coverage found in first wave<br />
projects, and instead focus on localizing information gathered to specific problems and creating<br />
deep, "unpackable" content that matches quantitative and qualitative data.<br />
Alternative approaches, such as the British aid agency's Drivers of Change research, skips<br />
numbers and promotes understanding corruption via political economy analysis of who controls<br />
power in a given society.<br />
Institutions Dealing with Political Corruption<br />
<br />
<br />
<br />
<br />
<br />
<br />
Global Witness, an international NGO established in 1993 that works to break the links<br />
between natural resource exploitation, conflict, poverty, corruption, and human rights<br />
abuses worldwide<br />
Group of States Against Corruption, a body established under the Council of Europe to<br />
monitor the implementation of instruments adopted by member states to combat political<br />
corruption<br />
Independent Commission Against Corruption (disambiguation)<br />
International Anti-Corruption Academy<br />
Transparency International, a non-governmental organization that monitors and<br />
publicizes corporate and political corruption in international development<br />
o Corruption Perceptions Index, published yearly by Transparency International<br />
TrustLaw, a service of the Thomson Reuters Foundation is a global hub for free legal<br />
assistance and news and information on anti-corruption<br />
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Page 90 of 115
Conflicts of Interest<br />
A Conflict of Interest is a situation in which a person or organization is involved in multiple<br />
interests (financial, emotional, or otherwise), one of which could possibly corrupt the<br />
motivation of the individual or organization.<br />
The presence of a<br />
conflict of interest is independent of<br />
the<br />
occurrence of impropriety. Therefore,<br />
a<br />
conflict of interest can be discovered<br />
and voluntarily defused before any<br />
corruption occurs. A widely used<br />
definition is: "A conflict of<br />
interest is a set of circumstances<br />
that creates a risk that professional judgement or actions<br />
regarding a primary interest will be unduly influenced by a<br />
secondary interest." Primary interest refers to the principal<br />
goals of the profession or activity, such as the protection of<br />
clients, the health of patients, the integrity of research,<br />
and the<br />
duties of public office. Secondary interest includes not<br />
only financial gain but also such motives as the desire for professional advancement and the wish<br />
to do favours for family and friends, but conflict of interest rules usually focus on financial<br />
relationships because they are relatively more objective, fungible, and quantifiable. The<br />
secondary interests are not treated as wrong in themselves, but become objectionable when they<br />
are believed to have greater weight than the primary interests. The conflict in a conflict of<br />
interest exists whether or not a particular individual is actually influenced by the secondary<br />
interest. It exists if the circumstances are reasonably believed (on the basis of past experience<br />
and objective evidence) to create a risk that decisions may be unduly influenced by secondary<br />
interests.<br />
The following are the most common forms of conflicts of interests:<br />
<br />
<br />
<br />
<br />
Self-dealing, in which an official who controls an organization causes it to enter into a<br />
transaction with the official, or with another organization that benefits the official only.<br />
The official is on both sides of the "deal."<br />
Outside employment, in which the interests of one job conflict with another.<br />
Nepotism, in which a spouse, child, or other close relative is employed (or applies for<br />
employment) by an individual, or where goods or services are purchased from a relative<br />
or from a firm controlled by a relative. To avoid nepotism in hiring, many employment<br />
applications ask if the applicant is related to a current employee of the company. This<br />
allows recusal if the employed relative has a role in the hiring process. If this is the case,<br />
the relative could then recuse from any hiring decisions.<br />
Gifts from friends who also do business with the person receiving the gifts or from<br />
individuals or corporations who do business with the organization in which the gift<br />
recipient is employed. Such gifts may include non-tangible things of value such as<br />
transportation and lodging.<br />
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Pump and dump, in which a stock broker who owns a security artificially inflates the<br />
price by "upgrading" it or spreading rumors, sells the security and adds short position,<br />
then "downgrades" the security or spreads negative rumors to push the price down.<br />
Other improper acts that are sometimes classified as conflicts of interests are probably better<br />
classified elsewhere. Accepting bribes can be classified as corruption. Use of government or<br />
corporate property or assets for personal use is fraud. Nor should unauthorized distribution of<br />
confidential information, in itself, be considered a conflict of interest. For these improper acts,<br />
there is no inherent conflict of roles (see above).<br />
COI is sometimes termed competition of interest rather than "conflict", emphasizing a<br />
connotation of natural competition between valid interests rather than violent conflict with its<br />
connotation of victimhood and unfair aggression. Nevertheless, denotatively, there is too much<br />
overlap between the terms to make any objective differentiation.<br />
Inherent Problems<br />
Self-Policing<br />
Self-policing of any group is also a conflict of interest. If any organization, such as a corporation<br />
or government bureaucracy, is asked to eliminate unethical behavior within their own group, it<br />
may be in their interest in the short run to eliminate the appearance of unethical behavior, rather<br />
than the behavior itself, by keeping any ethical breaches hidden, instead of exposing and<br />
correcting them. An exception occurs when the ethical breach is already known by the public. In<br />
that case, it could be in the group's interest to end the ethical problem to which the public has<br />
knowledge, but keep remaining breaches hidden.<br />
Government Officials<br />
Regulating conflict of interest in government is one of the aims of political ethics. Public<br />
officials are expected to put service to the public and their constituents ahead of their personal<br />
interests. Conflict of interest rules are intended to prevent officials from making decisions in<br />
circumstances that could reasonably be perceived as violating this duty of office. Rules in the<br />
executive branch tend to be stricter and easier to enforce than in the legislative branch. Two<br />
problems make legislative ethics of conflicts difficult and distinctive. First, as James Madison<br />
wrote, legislators should share a "communion of interests" with their constituents. Legislators<br />
cannot adequately represent the interests of constituents without also representing some of their<br />
own. As Senator Robert S. Kerr once said, "I represent the farmers of Oklahoma, although I have<br />
large farm interests. I represent the oil business in Oklahoma...and I am in the oil business...They<br />
don't want to send a man here who has no community of interest with them, because he wouldn't<br />
be worth a nickel to them." The problem is to distinguish special interests from the general<br />
interests of all constituents. Second, the "political interests" of legislatures include campaign<br />
contributions which they need to get elected, and which are generally not illegal and not the<br />
same as a bribe. But under many circumstances they can have the same effect. The problem here<br />
is how to keep the secondary interest in raising campaign funds from overwhelming what should<br />
be their primary interest—fulfilling the duties of office.<br />
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Politics in the United States is dominated in many ways by political campaign contributions<br />
Candidates are often not considered "credible" unless they have a campaign budget far beyond<br />
what could reasonably be raised from citizens of ordinary means. The impact of this money can<br />
be found in many places, most notably in studies of how campaign contributions affect<br />
legislative behavior. For example, the price of sugar in the United States has been roughly<br />
double the international price for over half a century. In the 1980s, this added $3 billion to the<br />
annual budget of U.S. consumers, according to Stern, who provided the following summary of<br />
one part of how this happens:<br />
Contributions from the sugar lobby,<br />
1983–1986<br />
Percent voting in 1985 against gradually reducing<br />
sugar subsidies<br />
> $5,000 100%<br />
$2,500–5,000 97%<br />
$1,000–2,500 68%<br />
$1–1,000 45%<br />
$0 20%<br />
This $3 billion translates into $41 per household per year. This is in essence a tax collected by a<br />
nongovernmental agency: It is a cost imposed on consumers by governmental decisions, but<br />
never considered in any of the standard data on tax collections.<br />
Stern notes that sugar interests contributed $2.6 million to political campaigns, representing well<br />
over $1,000 return for each $1 contributed to political campaigns. This, however, does not<br />
include the cost of lobbying. Lessig cites six different studies that consider the cost of lobbying<br />
with campaign contributions on a variety of issues considered in Washington, D.C. These studies<br />
produced estimates of the anticipated return on each $1 invested in lobbying and political<br />
campaigns that ranged from $6 to $220. Lessig notes that clients who pay tens of millions of<br />
dollars to lobbyists typically receive billions.<br />
Lessig insists that this does not mean that any legislator has sold his or her vote. One of several<br />
possible explanations Lessig gives for this phenomenon is that the money helped elect candidates<br />
more supportive of the issues pushed by the big money spent on lobbying and political<br />
campaigns. He notes that if any money perverts democracy, it is the large contributions beyond<br />
the budgets of citizens of ordinary means; small contributions from common citizens have long<br />
been considered supporting of democracy.<br />
When such large sums become virtually essential to a politician's future, it generates a<br />
substantive conflict of interest contributing to a fairly well documented distortion on the nation's<br />
priorities and policies.<br />
Beyond this, governmental officials, whether elected or not, often leave public service to work<br />
for companies affected by legislation they helped enact or companies they used to regulate or<br />
companies affected by legislation they helped enact. This practice is called the "revolving door".<br />
Former legislators and regulators are accused of (a) using inside information for their new<br />
employers or (b) compromising laws and regulations in hopes of securing lucrative employment<br />
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in the private sector. This possibility creates a conflict of interest for all public officials whose<br />
future may depend on the Revolving door.<br />
Mitigating Conflicts of Interest<br />
Disclosure<br />
Commonly, politicians and high-ranking government officials are required to disclose financial<br />
information—assets such as stock, debts such as loans, and/or corporate positions held, typically<br />
annually. To protect privacy (to some extent), financial figures are often disclosed in ranges such<br />
as "$100,000 to $500,000" and "over $2,000,000". Certain professionals are required either by<br />
rules related to their professional organization, or by statute, to disclose any actual or potential<br />
conflicts of interest. In some instances, the failure to provide full disclosure is a crime.<br />
However, there is limited evidence regarding the effect of conflict of interest disclosure despite<br />
its widespread acceptance. A 2012 study published in the Journal of the American Medical<br />
Association showed that routine disclosure of conflicts of interest by American medical school<br />
educators to pre-clinical medical students were associated with an increased desire among<br />
students for limitations in some industry relationships. However, there were no changes in the<br />
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perceptions of students about the value of disclosure, the influence of industry relationships on<br />
educational content, or the instruction by faculty with relevant conflicts of interest.<br />
And, an increasing line of research suggests that disclosure can have "perverse effects" or, at<br />
least, is not the panacea regulators often take it to be.<br />
Recusal for Conflict<br />
Those with a conflict of interest are expected to recuse themselves from (i.e., abstain from<br />
decisions where such a conflict exists). The imperative for recusal varies depending upon the<br />
circumstance and profession, either as common sense ethics, codified ethics, or by statute. For<br />
example, if the governing board of a government agency is considering hiring a consulting firm<br />
for some task, and one firm being considered has, as a partner, a close relative of one of the<br />
board's members, then that board member should not vote on which firm is to be selected. In<br />
fact, to minimize any conflict, the board member should not participate in any way in the<br />
decision, including discussions.<br />
Judges are supposed to recuse themselves from cases when personal conflicts of interest may<br />
arise. For example, if a judge has participated in a case previously in some other judicial role<br />
he/she is not allowed to try that case. Recusal is also expected when one of the lawyers in a case<br />
might be a close personal friend, or when the outcome of the case might affect the judge directly,<br />
such as whether a car maker is obliged to recall a model that a judge drives. This is required by<br />
law under Continental civil law systems and by the Rome Statute, organic law of the<br />
International Criminal Court.<br />
Third-Party Evaluations<br />
Consider a situation where the owner of a majority of a public companies decides to buy out the<br />
minority shareholders and take the corporation private. What is a fair price? Obviously it is<br />
improper (and, typically, illegal) for the majority owner to simply state a price and then have the<br />
(majority-controlled) board of directors approve that price. What is typically done is to hire an<br />
independent firm (a third party), well-qualified to evaluate such matters, to calculate a "fair<br />
price", which is then voted on by the minority shareholders.<br />
Third-party evaluations may also be used as proof that transactions were, in fact, fair ("arm'slength").<br />
For example, a corporation that leases an office building that is owned by the CEO<br />
might get an independent evaluation showing what the market rate is for such leases in the<br />
locale, to address the conflict of interest that exists between the fiduciary duty of the CEO (to the<br />
stockholders, by getting the lowest rent possible) and the personal interest of that CEO (to<br />
maximize the income that the CEO gets from owning that office building by getting the highest<br />
rent possible).<br />
Conclusion<br />
Generally, conflicts of interests should be eliminated. Often, however, the specifics can be<br />
controversial. Should therapists, such as psychiatrists, be allowed to have extra-professional<br />
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elations with patients, or ex-patients? Should a faculty member be allowed to have an extraprofessional<br />
relationship with a student, and should that depend on whether the student is in a<br />
class of, or being advised by, the faculty member?<br />
Codes of ethics help to minimize problems with conflicts of interests because they can spell out<br />
the extent to which such conflicts should be avoided, and what the parties should do where such<br />
conflicts are permitted by a code of ethics (disclosure, recusal, etc.). Thus, professionals cannot<br />
claim that they were unaware that their improper behavior was unethical. As importantly, the<br />
threat of disciplinary action (for example, a lawyer being disbarred) helps to minimize<br />
unacceptable conflicts or improper acts when a conflict is unavoidable.<br />
Since codes of ethics cannot cover all situations, some governments have established an office of<br />
the ethics commissioner, who can be appointed by the legislature and report to the legislature.<br />
<strong>Judicial</strong> Disqualification<br />
<strong>Judicial</strong> disqualification, also referred to as recusal, refers to the act of abstaining from<br />
participation in an official action such as a legal proceeding due to a conflict of interest of the<br />
presiding court official or administrative officer. Applicable statutes or canons of ethics may<br />
provide standards for recusal in a given proceeding or matter. Providing that the judge or<br />
presiding officer must be free from disabling conflicts of interest makes the fairness of the<br />
proceedings less likely to be questioned.<br />
Recusal Generally<br />
In the United States, the term "recusal" is used most often with respect to court proceedings. Two<br />
sections of Title 28 of the United States Code (the <strong>Judicial</strong> Code) provide standards for judicial<br />
disqualification or recusal. Section 455, captioned "Disqualification of justice, judge, or<br />
magistrate judge," provides that a federal judge "shall disqualify himself in any proceeding in<br />
which his impartiality might reasonably be questioned." The section also provides that a judge is<br />
disqualified "where he has a personal bias or prejudice concerning a party, or personal<br />
knowledge of disputed evidentiary facts concerning the proceeding"; when the judge has<br />
previously served as a lawyer or witness concerning the same case or has expressed an opinion<br />
concerning its outcome; or when the judge or a member of his or her immediate family has a<br />
financial interest in the outcome of the proceeding.<br />
28 U.S.C. Section 144, captioned "Bias or prejudice of judge," provides that under<br />
circumstances, when a party to a case in a United States District Court files a "timely and<br />
sufficient Motion that the judge before whom the matter is pending has a personal bias or<br />
prejudice either against him or in favor of an adverse party," the case shall be transferred to<br />
another judge.<br />
The General Rule is that, to warrant recusal, a judge's expression of an opinion about the merits<br />
of a case, or his familiarity with the facts or the parties, must have originated in a source outside<br />
the case itself. This is referred to in the United States as the "extra-judicial source rule" and was<br />
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ecognized as a general presumption, although not an invariable one, in the 1994 U.S. Supreme<br />
Court decision in Liteky v. United States.<br />
At times justices or judges will recuse themselves sua sponte (on their own motion), recognizing<br />
that facts leading to their disqualification are present. However, where such facts exist, a party to<br />
the case may suggest recusal. Generally, each judge is the arbiter of a motion for the judge's<br />
recusal, which is addressed to the judge's conscience and discretion. However, where lower<br />
courts are concerned, an erroneous refusal to recuse in a clear case can be reviewed on appeal or,<br />
under extreme circumstances, by a petition for a writ of prohibition.<br />
In certain special situations, circumstances, that would otherwise call for recusal of a judge or<br />
group of judges, may be disregarded, when otherwise no judge would be available to hear the<br />
case. For example, if a case concerns a salary increase payable to a judge, that judge would<br />
ordinarily be disqualified from hearing the case. However, if the pay increase is applicable to all<br />
of the judges in the court system, the judge will keep the case, because the grounds for recusal<br />
would be equally applicable to any other judge. The principle that a judge will not be<br />
disqualified when the effect would be that no judge could hear the case is sometimes referred to<br />
as the "rule of necessity".<br />
Supreme Court Cases<br />
In the Supreme Court of the United States, the Justices typically recuse themselves from<br />
participating in cases in which they have financial interests. For example, Justice Sandra Day<br />
O'Connor generally did not participate in cases involving telecommunications firms because she<br />
owned stock in these firms, and Justice Stephen Breyer has disqualified himself in some cases<br />
involving insurance companies because of his participation in a Lloyd's of London syndicate.<br />
Justices also have declined to participate in cases in which close relatives, such as their children,<br />
are lawyers for one of the parties. On occasion, recusal occurs under more unusual<br />
circumstances; for example, in two cases, Chief Justice William H. Rehnquist stepped down<br />
from the bench when cases were argued by Arizona attorney James Brosnahan, who had testified<br />
against Rehnquist at his confirmation hearing in 1986. Whatever the reason for recusal, the<br />
United States Reports will record that the named justice "took no part in the consideration or<br />
decision of this case."<br />
Historically, standards for recusal in the Supreme Court and lower courts were less rigorous than<br />
they have become in more recent years. In the 1803 case of Marbury v. Madison, Chief Justice<br />
John Marshall participated in the decision and authored the opinion of the Court even though<br />
Marshall's actions as Secretary of State two years prior could be seen as the subject of the<br />
proceeding. On the other hand, Marshall did recuse himself in both the 1813 and 1816 hearings<br />
of Martin v. Hunter's Lessee, despite its equally significant constitutional implications, as he and<br />
his brother had contracted with Martin to buy the land in dispute. Moreover, during the 19th<br />
century, the U.S. federal court system was structured so that an appeal from a judge's decision<br />
was often heard by an appellate panel containing the same judge, who was expected to sit in<br />
impartial review of his own earlier ruling. This situation is no longer permissible, and 28 U.S.C.<br />
Sec. 47 provides that "No judge shall hear or determine an appeal from the decision of a case or<br />
issue tried by him."<br />
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One of notable dispute over recusal in U.S. Supreme Court history took place in 1946, when<br />
Justice Hugo Black participated in deciding the Jewell Ridge Coal case, although a former law<br />
partner of Black argued for the prevailing side. The losing party in the 5–4 decision sought<br />
reargument on the ground that Black should have been disqualified; Black declined to recuse<br />
himself and the decision stood, but Justice Robert H. Jackson wrote a short opinion suggesting<br />
that the decision that Black should sit in the case was Black's alone and the Court did not endorse<br />
it. The dispute aggravated infighting between Black and Jackson, and it has been suggested that<br />
this was one of the reasons that, when Chief Justice Harlan Fiske Stone died, President Harry S.<br />
Truman appointed Fred M. Vinson to succeed Stone rather than promote a sitting Associate<br />
Justice to Chief Justice.<br />
In 1973, then-Associate Justice Rehnquist wrote a lengthy in-chambers opinion declining to<br />
recuse himself in Laird v. Tatum, a case challenging the validity of certain arrests, even though<br />
Rehnquist had previously served as a White House lawyer and opined that the arrest program<br />
was valid. In 2004, Justice Antonin Scalia wrote an opinion declining to recuse himself in a case<br />
to which Vice President Dick Cheney was a party in his official capacity, despite the contention<br />
of several environmental groups that Scalia's participation created an appearance of impropriety<br />
because Scalia had recently participated in a widely publicized hunting trip with the Vice<br />
President. The same year, however, Scalia recused himself without explanation in Elk Grove<br />
Unified School District v. Newdow, a First Amendment case challenging inclusion of the words<br />
"under God" in the Pledge of Allegiance, after giving a public speech in which Scalia stated his<br />
view that Newdow's claims were meritless.<br />
Other Federal Cases<br />
In 1974, Black federal Judge Leon Higginbotham issued his decision in Comm. of Pa. v. Local<br />
542, Int'l Union of Operating Engineers, explaining why he as an African American judge with a<br />
history of active involvement in the civil rights struggle was not obligated to recuse himself from<br />
presiding over litigation concerning claims of racial discrimination. He held, in an opinion that<br />
was followed by later judges, including a series of Black judges who faced recusal requests, that<br />
if a judge could be forced to step aside from a case merely because of their membership in a<br />
group that was the subject of discrimination, minorities would constantly be removed from cases.<br />
Jewish federal Judge Paul Borman relied on the Higginbotham opinion in part in his 2014<br />
decision not to recuse himself from the trial of Palestinian-American Rasmea Odeh. Similarly, in<br />
1994, Jewish then-federal-Judge Michael Mukasey refused to recuse himself in a case<br />
concerning the 1993 World Trade Center bombing, warning that the demand for his recusal<br />
would ―disqualify not only an obscure district judge such as the author of this opinion, but also<br />
Justices Brandeis and Frankfurter … each having been both a Jew and a Zionist.‖<br />
Administrative Agency and Other Matters<br />
Outside the judicial system, the concept of recusal is also applied in administrative agencies.<br />
When a member of a multi-member administrative body is recused, the remaining members<br />
typically determine the outcome. When the sole occupant of an official position is recused, the<br />
matter may be delegated to the official's deputy or to a temporarily designated official; for<br />
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example, when the Solicitor General of the United States is recused from a case, the Deputy<br />
Solicitor General will handle the matter in his or her place.<br />
Concepts analogous to recusal also exist in the legislative branch. The rules of the United States<br />
Senate and House of Representatives provide that a Member should not vote on a measure as to<br />
which he or she has a personal financial interest. In such cases, the Senator or Representative<br />
may record a vote of "present" rather than "yea" or "nay".<br />
International Standards of Recusal<br />
Laws or court rules provide the recusal of judges. Although the details vary, the following are<br />
nearly universal grounds for recusal.<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
<br />
The judge is related to a party, attorney, or spouse of either party (usually) within three<br />
degrees of kinship.<br />
The judge is a party.<br />
The judge is a material witness unless pleading purporting to make the Judge a party is<br />
false (determined by presiding judge, but see Substitution (law)).<br />
The judge has previously acted in the case in question as an attorney for a party, or<br />
participated in some other capacity.<br />
The judge prepared any legal instrument (such as a contract or will) whose validity or<br />
construction is at issue.<br />
Appellate judge previously handled case as a trial judge.<br />
The judge has personal or financial interest in the outcome. This particular ground varies<br />
by jurisdiction. Some require recusal if there is any interest at all in the outcome, while<br />
others only require recusal if there is interest beyond a certain value.<br />
The judge determines he or she cannot act impartially.<br />
Consequences for Non-Recusal<br />
A judge who has grounds to recuse himself is expected to do so. If a judge does not know that<br />
grounds exist to recuse themselves (but does) the error is harmless. If a judge does not recuse<br />
themselves when they should have known to do so, they may be subject to sanctions, which vary<br />
by jurisdiction. Depending on the jurisdiction, if an appellate court finds a judgment to have been<br />
made when the judge in question should have been recused, it may set aside the judgment and<br />
return the case for retrial.<br />
Waiver & Substitution<br />
The recusal rule may be avoided or ignored if all parties and the judge agree, although in practice<br />
this rarely occurs. If recusal is avoided in this manner, a full and complete record of the facts that<br />
qualify as grounds, above, must be made for the appellate court.<br />
If a judge fails to recuse themselves sua sponte and a party believes the judge has a bias the party<br />
may motion for substitution. In some jurisdictions litigants may have the right to substitute a<br />
judge, even if no bias is demonstrated.<br />
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International Case Law Standard for Recusal – Landmark Case<br />
R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233) is a leading<br />
English case on the impartiality and recusal of judges. It is famous for its precedence in<br />
establishing the principle that the mere appearance of bias is sufficient to overturn a judicial<br />
decision. It also brought into common parlance the oft-quoted aphorism "Not only must Justice<br />
be done; it must also be seen to be done."<br />
In 1923 McCarthy, a motorcyclist, was involved in a road accident which resulted in his<br />
prosecution before a magistrates court for dangerous driving. Unknown to the defendant and his<br />
solicitor, the clerk to the justices was a member of the firm of solicitors acting in a civil claim<br />
against the defendant arising out of the accident that had given rise to the prosecution. The clerk<br />
retired with the justices, who returned to convict the defendant.<br />
On learning of the clerk's provenance, the defendant applied to have the conviction quashed. The<br />
justices swore affidavits stating that they had reached their decision to convict the defendant<br />
without consulting their clerk.<br />
The appeal was essentially one of judicial review and was heard at the King's Bench division by<br />
Lord Chief Justice Hewart. In a landmark and far-reaching judgement, Lord Hewart CJ said:<br />
“<br />
It<br />
is said, and, no doubt, truly, that when that gentleman retired in the<br />
usual way with the justices, taking with him the notes of the evidence<br />
in case the justices might desire to consult him, the justices came to a<br />
conclusion without consulting him, and that he scrupulously abstained<br />
from referring to the case in any way. But while that is so, a long line<br />
of cases shows that it is not merely of some importance but is of<br />
fundamental importance that justice should not only be done, but<br />
should manifestly and undoubtedly be seen to be done.<br />
The question therefore is not whether in this case the deputy clerk<br />
made any observation or offered any criticism which he might not<br />
properly have made or offered; the question is whether he was so<br />
related to the case in its civil aspect as to be unfit to act as clerk to the<br />
justices in the criminal matter. The answer to that question depends<br />
not upon what actually was done but upon what might appear to be<br />
done.<br />
Nothing is to be done which creates even a suspicion that there has<br />
been an improper interference with the course of justice. Speaking for<br />
myself, I accept the statements contained in the justices' affidavit, but<br />
they show very clearly that the deputy clerk was connected with the<br />
case in a capacity which made it right that he should scrupulously<br />
abstain from referring to the matter in any way, although he retired<br />
”<br />
Page 100 of 115
with the justices; in other words, his one position was such that he<br />
could not, if he had been required to do so, discharge the duties which<br />
his other position involved. His twofold position was a manifest<br />
contradiction.<br />
In those circumstances I am satisfied that this conviction must be<br />
quashed, unless it can be shown that the applicant or his solicitor was<br />
aware of the point that might be taken, refrained from taking it, and<br />
took his chance of an acquittal on the facts, and then, on a conviction<br />
being recorded, decided to take the point. On the facts I am satisfied<br />
that there has been no waiver of the irregularity, and, that being so, the<br />
rule must be made absolute and the conviction quashed.<br />
The ruling is derived from the principle of natural justice and has been followed throughout the<br />
world in countries that use the English legal system. It has been applied in many diverse<br />
situations, including immigration cases, professional disciplinary cases, domestic tribunals such<br />
as members' clubs, and perhaps most famously in the Pinochet case, where the House of Lords<br />
overturned its own decision on the grounds of Lord Hoffman's conflict of interest.<br />
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Page 102 of 115
<strong>Judicial</strong> Activism<br />
<strong>Judicial</strong> Activism is judicial rulings suspected of being based on personal or political<br />
considerations rather than on existing law. It is sometimes used as an antonym of judicial<br />
restraint. The definition of judicial activism, and which specific decisions are activist, is a<br />
controversial political issue, particularly in the United States. The question of judicial activism is<br />
closely related to constitutional interpretation, statutory construction, and separation of powers.<br />
Arthur Schlesinger Jr. introduced the term "<strong>Judicial</strong> Activism" in a January 1947<br />
Fortune magazine article titled "The Supreme Court: 1947".<br />
The phrase has been controversial since its beginning. An<br />
article by Craig Green, "An Intellectual History of <strong>Judicial</strong><br />
Activism," is critical of Schlesinger's use of the term;<br />
"Schlesinger's original introduction of judicial<br />
activism was doubly blurred: not only did he<br />
fail to explain what counts as activism, he<br />
also declined to say whether activism<br />
is good or bad."<br />
Even before this phrase was first<br />
used, the general concept already<br />
existed. For example, Thomas Jefferson referred to the "despotic behaviour" of Federalist federal<br />
judges, in particular, John Marshall.<br />
Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making<br />
whereby judges allow their personal views about public policy, among other factors, to guide<br />
their decisions."<br />
Political science professor Bradley Canon has posited six dimensions along which judge courts<br />
may be perceived as activist: majoritarianism, interpretive stability, interpretive fidelity,<br />
substance/democratic process, specificity of policy, and availability of an alternate policymaker.<br />
David Strauss has argued that judicial activism can be narrowly defined as one or more of three<br />
possible actions: overturning laws as unconstitutional, overturning judicial precedent, and ruling<br />
against a preferred interpretation of the constitution.<br />
Others have been less confident of the term's meaning, finding it instead to be little more than a<br />
rhetorical shorthand. Kermit Roosevelt III has argued that "in practice 'activist' turns out to be<br />
little more than a rhetorically charged shorthand for decisions the speaker disagrees with";<br />
likewise, the solicitor general under George W. Bush, Theodore Olson, said in an interview on<br />
Fox News Sunday, in regards to a case for same-sex marriage he had successfully litigated, that<br />
"most people use the term 'judicial activism' to explain decisions that they don't like." Supreme<br />
Page 103 of 115
Court Justice Anthony Kennedy has said that, "An activist court is a court that makes a decision<br />
you don't like."<br />
The Great <strong>Judicial</strong> Activism Debate<br />
Detractors of judicial activism charge that it usurps the power of the elected branches of<br />
government or appointed agencies, damaging the rule of law and democracy. Defenders of<br />
judicial activism say that in many cases it is a legitimate form of judicial review, and that the<br />
interpretation of the law must change with changing times.<br />
A third view is that so-called "objective" interpretation of the law does not exist. According to<br />
law professor Brian Z. Tamanaha, "Throughout the so-called formalist age, it turns out, many<br />
prominent judges and jurists acknowledged that there were gaps and uncertainties in the law and<br />
that judges must sometimes make choices."<br />
Some proponents of a stronger judiciary argue that the judiciary helps provide checks and<br />
balances and should grant itself an expanded role to counterbalance the effects of transient<br />
majoritarianism, i.e., there should be an increase in the powers of a branch of government which<br />
is not directly subject to the electorate, so that the majority cannot dominate or oppress any<br />
particular minority through its elective powers. Other scholars have proposed that judicial<br />
activism is most appropriate when it restrains the tendency of democratic majorities to act out of<br />
passion and prejudice rather than after reasoned deliberation.<br />
Moreover, they argue that the judiciary strikes down both elected and unelected official action, in<br />
some instances acts of legislative bodies reflecting the view the transient majority may have had<br />
at the moment of passage and not necessarily the view the same legislative body may have at the<br />
time the legislation is struck down. Also, the judges that are appointed are usually appointed by<br />
previously elected executive officials so that their philosophy should reflect that of those who<br />
nominated them, that an independent judiciary is a great asset to civil society since special<br />
interests are unable to dictate their version of constitutional interpretation with threat of stopping<br />
political donations.<br />
Landmark Cases in <strong>Judicial</strong> Activism<br />
The following are [cases] cited as examples of judicial activism:<br />
1. R v Sussex Justices, ex p McCarthy<br />
<br />
<br />
<br />
Brown v. Board of Education – 1954 Supreme Court ruling ordering the desegregation of<br />
public schools.<br />
Roe v. Wade – 1973 Supreme Court ruling decriminalizing abortion.<br />
Bush v. Gore – The United States Supreme Court case between the major-party<br />
candidates in the 2000 presidential election, George W. Bush and Al Gore. The judges<br />
voted 5-4 to halt the recount of ballots in Florida and, as a result, George Bush was<br />
elected President.<br />
Page 104 of 115
Citizens United v. Federal Election Commission – 2010 Supreme Court decision<br />
declaring Congressionally enacted limitations on corporate political spending and<br />
transparency as unconstitutional restrictions on free speech.<br />
Hollingsworth v. Perry – 2013 decision by federal judge Vaughn R. Walker overturning<br />
California's constitutional amendment to ban same-sex marriage.<br />
Contempt of Court and disqualification of Pakistani Prime Minister Yusuf Raza Gilani by<br />
the Supreme Court of Pakistan chief justice Iftikhar Muhammad Chaudhry.<br />
2. R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet<br />
(No 2)<br />
R v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte (No 2) was an<br />
English legal case which involved the unprecedented setting aside of a House of Lords judgment<br />
based upon the possibility of bias. Lord Hoffmann's failure to declare links to Amnesty<br />
International meant that a previous House of Lords judgment on the immunity of former Chilean<br />
dictator General Augusto Pinochet had to be set aside.<br />
Page 105 of 115
Page 106 of 115
References<br />
1. http://en.wikipedia.org/wiki/<strong>Judicial</strong>_reform<br />
2. http://en.wikipedia.org/wiki/Judiciary<br />
3. http://en.wikipedia.org/wiki/Supreme_court<br />
4. http://en.wikipedia.org/wiki/<strong>Judicial</strong>_independence<br />
5. http://en.wikipedia.org/wiki/Judiciary_of_Russia<br />
6. http://en.wikipedia.org/wiki/Law_reform<br />
7. http://en.wikipedia.org/wiki/<strong>Judicial</strong>_review<br />
8. http://en.wikipedia.org/wiki/<strong>Judicial</strong>_review_in_the_United_States<br />
9. http://en.wikipedia.org/wiki/Rule_of_law<br />
10. http://en.wikipedia.org/wiki/Political_corruption<br />
11. http://en.wikipedia.org/wiki/<strong>Judicial</strong>_disqualification<br />
12. http://en.wikipedia.org/wiki/<strong>Judicial</strong>_activism<br />
13. http://en.wikipedia.org/wiki/List_of_landmark_court_decisions_in_the_United_States<br />
14. http://en.wikipedia.org/wiki/Conflict_of_interest<br />
15. http://en.wikipedia.org/wiki/R_v_Sussex_Justices,_ex_p_McCarthy<br />
16. http://en.wikipedia.org/wiki/R_v_Bow_Street_Metropolitan_Stipendiary_Magistrate,_ex<br />
_p_Pinochet_%28No_2%29<br />
17. http://iosrjournals.org/iosr-jhss/papers/Vol19-issue2/Version-4/C019242025.pdf<br />
18. http://www.texaslrev.com/wp-content/uploads/Stone-89-TLR-1423.pdf<br />
19. http://regentuniversity.org/acad/schlaw/student_life/studentorgs/lawreview/docs/issues/v<br />
14n1/Vol.%2014,%20No.%201,%205%20Jones.pdf<br />
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Page 108 of 115
Attachment A<br />
The Role of <strong>Judicial</strong> Activism<br />
Page 109 of 115
IOSR Journal Of Humanities And Social Science (IOSR-JHSS)<br />
Volume 19, Issue 2, Ver. IV (Feb. 2014), PP 20-25<br />
e-ISSN: 2279-0837, p-ISSN: 2279-0845.<br />
www.iosrjournals.org<br />
“The Role of <strong>Judicial</strong> Activism in the Implementation and<br />
Promotion of Constitutional Laws and Influence of <strong>Judicial</strong><br />
Overactivism”<br />
Vipin Kumar (NET, M.Phil.),<br />
Research Scholar, Shri Venkateshwara University, Rajabpur, Gajraula (UP) Address- near K.G.K (P G)<br />
College Dev Vihar Colony, Line Par, Moradabad, Mob- 945806777, 8194005705<br />
Abstract: <strong>Judicial</strong> activism is today one of the most misused constitutional terms. India practices<br />
constitutionaldemocracy with emphasis on constitutionalism. This comes with it to high rates of political<br />
activities with misuse of political powers granted in the Constitution by the political actors. Naturally, the court<br />
is called upon to wear its active posture and interpret theConstitution as it affects the political class. However,<br />
each decision of the courts interpreting the constitution against the political class is met with cries of “judicial<br />
activism” from one side of the political spectrum or the other. The other cry seems to be that the courts are<br />
encroaching into the domain of the political class thereby violating the doctrine of political questions which is<br />
essentially a function of separation of powers. The paper sees these terms as being misused and makes an<br />
analytical exposition of the term and judicial intervention into political questions in India. It contends that<br />
courts should ensure the limits of governmental action under the principles of a constitutional democracy, even<br />
in the delicate field of internal affairs of governmental institutions. For this purpose, various constitutional<br />
provisions and judicial decisions are examined.<br />
Key Words: <strong>Judicial</strong> activism, constitutional democracy , separation of powers, constitutional provisions ,<br />
I. Introduction:-<br />
Today judicial activism has touched almost each and every aspect of life ranges from human rights<br />
issues to maintenance of public roads! <strong>Judicial</strong> activism means the power of the Supreme Court and the high<br />
court but not the sub-ordinate courts to declare the laws as unconstitutional and void. If it infringes or if the law<br />
is inconsistent with one or more provisions of the constitution. To the extent of such inconsistency while<br />
declaring a law as constitutional and void the courts do not suggest any alternative measures.<br />
The term judicial activism despites its popularity to amongst legal experts, judges, scholars and<br />
politicians has not until recently been given an appropriate definition of what the term should mean so that it<br />
will not be subject to abuse. 1 The effect of this has been a misconception about what the term is all about. 2<br />
This therefore creates series of definitions about the concept. Although definitions are usually products of<br />
individual idiosyncrasies and it‟s often influenced by the individual perception or world view, a<br />
combination of various definitions gives a description of the concept.<br />
the <strong>Judicial</strong> Activism as innovative, dynamic and law making role of the Court with a forward looking<br />
attitude discarding reliance on old cases, and also mechanical, conservative and static views. It is the creative<br />
thought process through which the court displays vigour, enter- prise, initiative pulsating with the urge of<br />
creating new and refined principles of law. It means when the Court plays a positive role the court is said to be<br />
exhibiting the „<strong>Judicial</strong> Activism‟. There are different opinions about the origin of doctrine of <strong>Judicial</strong> Activism.<br />
Some scholars like Justice M.N. Roy believe that it is born in 1804 when Chief Justice Marshall, the greatest<br />
judge of English-speaking world, decided Marbury V Madison. But P.P. Vijayan differs with saying that<br />
Marbury V Madison is a case of <strong>Judicial</strong> Review and not of a <strong>Judicial</strong> Activism. However he opines that the<br />
judicial activism has a hoary past in Dr. Bonham‟s case in which Justice Coke derived doctrine of natural justice<br />
in the year 1610. In this context Dr. Suresh Mane observed that “As a result English Courts by its interpretation<br />
role extended the necessary protection; but truly, the movement of judicial activism got momentum on the soil<br />
ofAmerica under the shadow of first ever written Constitution.” 1 The role of the judiciary in a modern legal<br />
system is immense social significance.... Law is in a constant process of flux and development, and though<br />
much of this development is due to the enactment of the legislature, the judges and the courts have an essential<br />
role to play in developing the law and adopting it to the needs of the Society. 3<br />
Paul Mahoney in offering his own definition of the concept submits that judicial activism exists where<br />
the judges modified the law from what was previously stated to be the existing law which often leads to<br />
substituting their own decisions from that of the elected representatives of the people. 4 This definition would<br />
consider invalid actions or decisions of the judges given for the purpose of seeking the justice in a particular<br />
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“The Role Of <strong>Judicial</strong> Activism In The Implementation And Promotion Of Constitutional Laws And<br />
case or to interpret the law insuch a way as to conform to social realities thereby not permitting the correction of<br />
mistakes in the previous jurisprudence of law. 5<br />
Famous Author SubhashKashyap says, “What has come to be called hyper activism of the judiciary<br />
draws its strength, Relevance and legitimacy from the inactivity, incompetence, disregard of law and<br />
constitution, criminal negligence, corruption, greed for power and money, utter indiscipline and lack of<br />
character and integrity among the leaders, ministers and administrators. As a result of this a vacuum was created<br />
in which the governmental machinery seemed to be totally helpless with the corruption in legislative and<br />
executive fields. The vacuum was filled in by the judiciary”.<br />
A contrary view has also been offered that the judicial activism becomes the most valuable<br />
instrument when the legislative machinery comes to a halt in a case. 6 Thus, where legislative machinery could<br />
not apply to a given situation, judicial activism appears to be the most valuable instrument. In other words,<br />
judges should not be scared of adjudicating a particular case because the law has not been enacted by the<br />
legislature to cover the situation. This therefore justifies the application of judicial creativity in the matter.<br />
<strong>Judicial</strong> Activism in India: The significant feature of Indian Constitution is partial separation of powers. -The<br />
doctrine of separation of powers was propounded by the French Jurist, Montesquieu. It is partly adopted tit India<br />
since the executive powers are vested in the president, Legislative powers tit the Parliament and the judicial<br />
powers in the Supreme Court and subordinate courts. The role of separation of powers in India is simple. The<br />
three organs of the Government viz. the Executive, Legislature and the Judiciary are not independently<br />
independent but inter-dependently independent. (The executive encroaches upon judicial power, while<br />
appointing the judges of Supreme Court and High Courts. Similarly the Judiciary, by its review power examines<br />
the law passed by file legislature parliament and the legislature also, intervenes in respect of impeachment of the<br />
president).<br />
As stated earlier, the <strong>Judicial</strong> Activism tit India can he witnessed with reference to the review power of<br />
the Supreme Court and High Court under Art. 32 and 226 of the Constitution particularly in public interest<br />
litigation cases. The Supreme Court played crucial role in formulating several principles in public interest<br />
litigation cases. For instance, the principle of "absolute liability" was propounded in Oleum Gas Leak case.<br />
Public Trust Doctrine in Kamalnath Case (1998 I SCC .388) etc.<br />
Further, the Supreme Court, gave variety of guidelines in various cases of public interest litigation. eg:<br />
Ratlam Municipality Case, Oleum Gas Leak Case, Ganga Pollution Case etc.<br />
In India the concept originated after a public interest litigation was filed before the supreme court<br />
when the then Chief justice P N Bhagwati took an unknown case directly from the public who did not had any<br />
involvement in the case but it was just for the public welfare and also was related to public in large. Justice<br />
P N Bhagwati has said that “One basic and fundamental question that confronts every democracy, run by a<br />
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<br />
exists-or to make law? And this question is very important, for on it depends the scope of judicial activism. The<br />
anglo-saxon tradition persists in the assertion that a judge does not make law; he merely interprets. Law is<br />
existing and eminent; the judge merely finds it. He merely reflects what the legislature has said. This is the<br />
photographic theory of the judicial function”. It is for the judge to give meaning to what the legislature has said<br />
and it is this process of interpretation which constitutes the most creative and thrilling function of a judge. In the<br />
initial years of 1950-67, the Supreme Court adopted the attitude of judicial restraint in which the court gave a<br />
strict and literal interpretation of the constitution.<strong>Judicial</strong> review in India was provided for expressly in the<br />
Constitution. Article 13, clause (1) says that all laws in force in the territory of India immediately before the<br />
commencement of the Constitution, in so far as they are inconsistent with the provisions containing the<br />
fundamental rights, shall, to the extent of such inconsistency, be void. Clause (2) of that article further says that<br />
the State shall not make any law that takes away or abridges any of the fundamental rights and any law made in<br />
contravention of the above mandate shall, to the extent of the contravention, be void. The Constitution also<br />
divides the legislative power between the Centre and the states and forbids either of them to encroach upon the<br />
power given to the other. Who is to decide whether a legislature or an executive has acted in excess of its<br />
powers or in contravention of any of the restrictions imposed by the Constitution on its power? Obviously, such<br />
function was assigned to the courts. The Constitution was criticized by some members of the Constituent<br />
Assembly for being a potential lawyers‟ paradise. Dr. B.R. Ambedkar defended the provisions of judicial<br />
review as being absolutely necessary and rejected the above criticism. According to him, the provisions for<br />
judicial review and particularly for the writ jurisdiction that gave quick relief against the abridgement of<br />
fundamental rights constituted the heart of the Constitution, the very soul of it. The nature and scope of judicial<br />
review was first examined by the Supreme Court in A.K. Gopalan case where it accepted the principle of<br />
judicial subordination to legislative wisdom. But on the whole it limited itself and exercised judicial restraint.<br />
The second phase unfolded with the Golaknath case which resulted in on open conflict between the judiciary<br />
and legislature. The parliament asserted its supremacy and the Supreme Court asserted its power of <strong>Judicial</strong><br />
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“The Role Of <strong>Judicial</strong> Activism In The Implementation And Promotion Of Constitutional Laws And<br />
Review, which resulted in a series of constitutional amendments in which the parliament tried to limit the power<br />
of <strong>Judicial</strong> review. In the Emergency of 1975-77, the judiciary was made subservient to the legislature and<br />
executive. In Golaknath case, the Supreme Court gave an unprecedented judgment, which was clearly a case of<br />
<strong>Judicial</strong> Activism. The reason of imposing emergency was the decision of Allahabad High Court setting aside<br />
the election of Prime Minister Indira Gandhi to the LokSabha. The 42nd constitutional Amendment Act was<br />
also passed which put new limitations on the judiciary. After the emergency the 44th constitutional Act was<br />
passed which restored the judiciary‟s position as it had existed before the emergency. In Minerva mills case the<br />
Supreme Court declared judicial review as part of the basic structure. Since 1980‟s we saw the emergence of<br />
<strong>Judicial</strong> Activism as a powerful tool in Indian Polity. Thus now we find that the Supreme Court is no longer<br />
exercising judicial restraint. But in fact, it has taken up <strong>Judicial</strong> Activism so much. A court giving new meaning<br />
to a provision so as to suit the changing social or economic conditions or expanding the horizons of the right of<br />
the individual is said to be an activist court. Thus has given birth to <strong>Judicial</strong> Activism. In the words of Justice J.<br />
S. Varma “The role of the Judiciary in interpreting existing laws according to the needs of the times and filling<br />
in the gaps appears to be the true meaning of <strong>Judicial</strong> Activism. 7<br />
Present scenario of <strong>Judicial</strong> activism or <strong>Judicial</strong> overactivism:-<br />
Of late the Indian judiciary appears to have become overactive, and is often accused of judicial<br />
overreach. This accusation was usually leveled by politicians or others outside the judicial system, until in 2008<br />
it was leveled by Justice A.K. Mathur and the writer (as Judges of the Supreme Court) in Divisional Manager,<br />
Aravalli Golf Course v. Chander Haas.The Indian Supreme Court surely came a long way since Anwar Ali<br />
Sarkar Vs. State of West BengalAIR 1952 SC 75 and A.K. Gopalan Vs. State of Madras where the judiciary<br />
refused to indulge in making judicial policy and instead exercised judicial restraint keeping in mind the Doctrine<br />
of Separation of Powers. However, the pendulum later swung to the opposite direction. Thus, in Maneka<br />
Gandhi vs. Union of India AIR 1978 SC 593 the 7 Judge Bench of the Indian Supreme Court, while overruling<br />
the 5 Judge Bench decision in A.K. Gopalan‟scase introduced the due process clause in the Indian Constitution<br />
by a judicial pronouncement. In S. P. Gupta Vs. Union of India ,AIR 1982 SC 149 it was held that:“He [the<br />
judge] has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of dynamic<br />
interpretation, invest it with a meaning which will harmonize the law with the prevailing concepts and values<br />
and make it an effective, instrument for delivery of justice.”<br />
Similarly, in the case of Supreme Court Advocates on Record Vs. Union of India,1993 4 SCC 44it was held<br />
that:“It belongs to the Judiciary to ascertain the meaning of the constitutional provisions and the laws enacted by<br />
the Legislature.”<br />
This was the advent of an over active judiciary which assumed upon itself the need to adjudicate even<br />
where it was not perceived to be warranted. Although Article 50 (8) of the Indian Constitution expressly provides<br />
for Separation of Powers between the different organs of the State, but time and again, the Indian Supreme<br />
Court has taken on itself the task of filling in the gaps created by the Legislature and the Executive to do<br />
„justice‟.<br />
While doing so, the judiciary has been often criticized for overstepping its limits. In the case of<br />
VineetNarainvs. Union of India, 1998 Cri. L. J. 1208 the Supreme Court had invented a new writ called<br />
“continuing mandamus” where it wanted to monitor the investigating agencies which were guilty of inaction to<br />
proceed against persons holding high offices in the executive who had committed offences. Furthermore, the<br />
Court created by its judicial order a body called the Central Vigilance Commission, which was not contemplated<br />
by the statute (the Delhi Special Police Establishment Act, 1946), for supervising the functioning of a statutory<br />
body, the Central Bureau of Investigation. The Court also laid down a number of guidelines for the<br />
appointments of chiefs of investigating agencies like Central Bureau of Investigation, Central Vigilance<br />
Commission and the Enforcement Directorate; apart from the Chiefs of the State Police. These guidelines, apart<br />
from being in relation to appointment, were also with regard to their status, transfer and tenure, etc. The<br />
question arises whether this was legitimate exercise of judicial power.In the case of Indian Council for Enviro-<br />
Legal Action Vs. Union of India, (1996) 5 SCC 281the Court passed various orders especially directed<br />
towards the States requiring them to submit management plans to control pollution to both, the Central<br />
Government as well as the Court. Here, the Court held that it was only discharging its judicial functions in<br />
ensuring that it remedies the errors of the executive.<br />
In the case of M. C. Mehta vs. Union of India, (2001) 3 SCC 763where a writ was filed with regard<br />
to the vehicular pollution in Delhi, the Supreme Court had passed directions for the phasing out of diesel buses<br />
and for the conversion to CNG. When these directions were not complied with due to shortage in supply of<br />
CNG, the Court held that orders and directions of the Court could not be nullified or modified by State or<br />
Central governments. This was a case where, despite several directions being given by the Supreme Court, the<br />
government did not act speedily in responding to the Order.<br />
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The Court has prescribed norms regarding the running of the prisons and mental intuitions , 9 instructed the<br />
Government to implement labor laws at construction sites, 10 recognised admissions in medical colleges<br />
throughout India laying down examination schedules, 11 prescribing hawking zones in metropolitan cities, 12 laid<br />
down the guidelines for the retail outlets for essential commodities such as LPG, 13 resolving disputes between<br />
public undertakings of Central Government, 14 directed the authorities like C.B.I to conduct and complete<br />
investigation expeditiously in cases of national importance, 15 directed the noxious factories to restart on the<br />
technical reports on safety measures, 16 prescribed the poverty limits for the low income urban housing 17 or set<br />
up an expert panel headed by a retired Supreme Court to study the vehicular pollution level 18 etc. In these<br />
decisions the court did legislate, but in the process was criticized for having infringed upon the executive<br />
domain.<br />
With due respect to these and other decisions it has to be said that many judges often forget that the<br />
judiciary cannot solve all problems in the country. Suppose the Court passes an order that from tomorrow<br />
poverty in India, or unemployment, or malnutrition etc. are abolished. Will these orders mean anything? Can<br />
they really be implemented? India is a poor country with limited financial resources. Moreover, many such<br />
orders e.g. for interlinking rivers vide In re Networking of Rivers (2012) 4 S.C.C. 51 raise great technical and<br />
administrative problems, and are really in the domain of the legislature or executive.<br />
The most recent case on judicial activism was the case of ArunaRamchandraShanbaugVs. Union of<br />
India and Others. JT 2011 (3) SC 300.ArunaShanbaug, a nurse in 1973, while working at a Hospital at<br />
Mumbai, was sexually assaulted and has been in a permanent vegetative state since the assault. In 2011, after<br />
she had been in this status for 37 years, the Supreme Court of India heard the petition to the plea for euthanasia<br />
filed by a social activist claiming to be Aruna‟s friend. The Court turned down the petition, but in its landmark<br />
judgment (authored by the writer) it allowed passive euthanasia i.e. withdrawal of life support to a person in<br />
permanently vegetative state, subject to approval by the High Court.<br />
II. Trends in <strong>Judicial</strong> Restraint:-<br />
Rising judicial activism was hindering governance in the country and impacting growth in Asia's third<br />
largest economy, finance minister P Chidambaram said.<br />
"Nowhere in the world would we see ideal balance between legislature and judiciary. But in India, we have seen<br />
intensifying judicial activism, which had impacted the balance of governance," Chidambaram said at The<br />
Economic Times Awards for Corporate Excellence.<br />
"The balance in India has swung away from the executive and the parliament," he said. "The judiciary has taken<br />
an upper hand. Unless the executive has a final say, we cannot have sustained high growth rate. Countries like<br />
China, Brazil and Mexico, with a stronger executive authority, have exhibited better growth trajectory," he<br />
argued.<br />
"<strong>Judicial</strong> institutions cannot take over governance. We must rediscover the balance between our<br />
institutions and we have to reassert the balance between reforms, development and institutions," Chidambaram<br />
said.<br />
Sounding a note of caution on judicial activism, The President of India Mr. Pranab Mukherjee said judicial<br />
pronouncements must respect the boundaries that separate the legislature, executive and judiciary. Making his<br />
first visit outside the national capital after assuming the office of President on July 25, Mukherjee also said that<br />
everything must be done to protect the independence of judiciary from any form of encroachment. Addressing<br />
the valedictory function of the 150th anniversary celebrations of the Madras High Court, he urged judiciary to<br />
keep reinventing itself through a process of introspection and self-correction at the same time. In his address,<br />
Mukherjee touched upon various issues that dominate legal discourse including judicial accountability and the<br />
appointment of judges. The President referred to judicial activism and said the judges through innovation and<br />
activism have contributed enormously to expanding the frontiers of justice and providing access to the poorest<br />
of the poor. 19<br />
The Supreme Court in an order has said that the judiciary must refrain from encroaching on legislative<br />
and executive domain otherwise it will boomerang in the form of political class stepping to clip their wings. A<br />
bench comprising Justice AK Mathur and Justice MarkandeyKatju said, "If the judiciary does not exercise<br />
restraint and over-stretches its limit there is bound to be reaction from politicians and others. The politicians will<br />
then step in and curtail the powers or even independence of the judiciary. The judiciary should, therefore,<br />
confine itself to its proper sphere, realizing that in a democracy many matters and controversies are best<br />
resolved in a non-judicial setting." The court said that justification often given for judicial encroachment into the<br />
domain of the executive or legislature is that the other two organs are not doing their jobs properly. Even<br />
assuming this is so, the same allegation can then be made against the judiciary too because there are cases<br />
pending in courts for half-a-century, bench said. If they are not discharging their assigned duties, the remedy is<br />
not judicial interference as it will violate delicate balance of power enshrined in the constitution, remarked the<br />
court. 20<br />
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There are many examples where judiciary had encroached upon the turf which was unwarranted. The<br />
Jagdambika Pal caseof 1998 involving UP legislative assembly and the Jharkhand assembly case of 2005 are<br />
the two glaring examples of deviations from the clearly provided constitutional scheme of separation of powers,<br />
said bench.<br />
There is broad (though not absolute) separation of powers in the Indian Constitution vide Divisional Manager,<br />
Aravali Golf Course vs. Chander Haas, 2008. The Constitution of India did not provide for the judiciary to<br />
be a super legislature or a substitute for the failure of the other two organs. Thus, the need arises for the<br />
judiciary to lay down its own limitations.<br />
Some people say that the judiciary can enter into the domain of the executive or legislature because these organs<br />
are not functioning properly. But then it can also be said that the judiciary, too, is not functioning properly, there<br />
is great delay in deciding cases, corruption in a section of the judiciary, etc. Should then the legislature or<br />
executive take over the judiciary‟s function?<br />
One of the examples of judicial restraint is the case of State of Rajasthan Vs. Union of India,AIR<br />
1977 SC 1361, in which the court rejected the petition on the ground that it involved a political question and<br />
therefore the court would not go into the matter. In S.R. Bommai Vs. Union of India,(1994) 3 SCC 1, the<br />
judges said that there are certain situations where the political element dominates and no judicial review is<br />
possible. The exercise of power under Art.356 was a political question and therefore the judiciary should not<br />
interfere. Ahmadi J. said that it was difficult to evolve judicially manageable norms to scrutinize the political<br />
decisions and if the courts do it then it would be entering the political thicket and questioning the political<br />
wisdom, which the court must avoid. 21<br />
In Almitra H. Patel Vs. Union of India, (2000) 2 SCC 679, where the issue was whether directions should be<br />
issued to the Municipal Corporation regarding how to make Delhi clean, the Court held that it was not for the<br />
Supreme Court to direct them as to how to carry out their most basic functions and resolve their difficulties, and<br />
that the Court could only direct the authorities to carry out their duties in accordance with what has been<br />
assigned to them by law. Also, in Union of India Vs. Kishan K. Sharma, (2004) 5 SCC 518,when the High<br />
Court issued a Mandamus to the Government to pay a particular scale to its officers, the Supreme Court laying<br />
down the boundaries of judicial activism in general held that such Mandamus would not be permissible as<br />
fixation of salaries was an administrative decision. Similarly, creation of a post is an administrative or<br />
legislative functions, and cannot be done by the court vide Divisional Manager, Aravali Golf Course (supra)<br />
III. Conclusion:-<br />
However, the governance cannot be replaced by the judicial institutions. There is a need to discover a<br />
balance between judicial and executive institutions. We need to reassert the balance between reforms,<br />
development and institutions. <strong>Judicial</strong> activism should not be used to lead to the Constitutional principles of<br />
separation of power getting eroded. Our Hon‟ble Judges should not cross their limits in the name of judicial<br />
activism and not to try to take over the functions of other organs of administration. <strong>Judicial</strong> pronouncements<br />
must respect the boundaries that separate the Legislature, Executive and Judiciary. The<strong>Judicial</strong> Activism has<br />
touched almost every aspect of life in the present times. Be it the case of bonded labor, illegal detentions, torture<br />
and maltreatment of women, the implementation of various provisions of the constitution, environmental<br />
problems, health, sports etc. the courts took cognizance of each case and laid down various judgments to protect<br />
the basic human rights of each and every member of society. However, the politicians and some constitutional<br />
experts criticize judicial activism and on the other hand the lawyers and public has welcomed it with warm<br />
hands. It is important to note that judicial Activism has so many merits but it has certain demerits. Here it is<br />
important to note that we cannot lead the government on judicial basis only. Frequent confrontation between the<br />
Legislature, Executive and the judiciary will also damage our well established democratic system of<br />
governance. The members of every institutionsworn to uphold the constitution, which alone is supreme. Both<br />
sides will maintain and respect the line of demarcation of power under the constitution and will not allow a<br />
conflict to develop between them.<br />
By evolving the doctrine of Basic Structure of the Constitution, the Hon‟ble Supreme Court of India<br />
has limited the power of Parliament to amend the constitution. The court‟s increased activism has been good and<br />
contributed a lot for India‟s democracy. The expensive, technical justice now becomes inexpensive and nontechnical<br />
through the growth of Public Interest Litigations. The important question today is not whether the<br />
Supreme Court could activate its judicial role, but to what extent the concepts of <strong>Judicial</strong> Activism and<br />
creativity are exercised. A balance between the powers of Judiciary, Legislature and executive is necessary to<br />
carry the nation on the true path of democracy.<br />
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References:-<br />
[1]. See for instance some of the work that are on judicial activism without really defining the term. Chad M. Old father, “Defining<br />
<strong>Judicial</strong> Inactivism: Models of Adjudication and the Duty to Decide” (2005) 94, Geo. L.J. 121, 122<br />
[2]. Keenan D. Kmiec, “The Origin and Current Meanings of "<strong>Judicial</strong> Activism," (2004) 92, Cal. L. Rev., 1441, 1442;See also<br />
Bradley C. Canon, “A Framework for the Analysis of <strong>Judicial</strong> Activism” in Stephen C. Halpem& Charles M. Lamb eds., Supreme<br />
Court Activism And Restraint 1982, 385, 386 (describing prevalent activism debates as "little more than a babel of loosely<br />
connected discussion").<br />
[3]. Cardozo Benjamin N, The Nature of the <strong>Judicial</strong> Process, Universal Law Publishing Co.Pvt.Ltd., Delhi, (2004)<br />
[4]. Paul Mahoney, “<strong>Judicial</strong> Activism and <strong>Judicial</strong> Self-Restraint in the European Court of Human Rights: Two Sides of the Same<br />
Coin” (1990) 11, Hum. Rts. L.J. 57, 58.<br />
[5]. DragoljubPopovic, “Prevailing <strong>Judicial</strong> Activism over Self Restraint in the Jurisprudence of the European Court of Human Rights”<br />
( 2009) vol. 42, Creighton Law Review, 361 at 363.<br />
[6]. Thijmen Koopmans, “The Roots of <strong>Judicial</strong> Activism in Protecting Human Rights: The European Dimension, Studies In<br />
Honor Of Gérard J. Wiarda 326 (F Matscher& H. Petzold Eds., 1988).<br />
[7]. JUDICIAL ACTIVISM IN INDIA- An Overview (By Arjun.M, Administrative Assistant, Centre for Public Policy Research)<br />
[8]. Article 50: The State shall take steps to separate the judiciary from the executive in the public services of the State.<br />
[9]. SheelaBarsevs. State of Maharashtra, (1983) 2 SCC 96<br />
[10]. Labors on Sala Hydro Electricity Project Vs. State of J & K, (1984) 3 SCC 538<br />
[11]. Pradeep Kumar Jain Vs. State of .P., AIR 1984 SC 1420<br />
[12]. Bombay Hawkers Union Vs. B.M.C., (1985) 3 SCC 528<br />
[13]. Center for PIL Vs. Union of India, 1995 Sppl. (3) SCC 382<br />
[14]. ONGC Vs. Collector of Central Excise, 1995 Sppl. (3) SCC 541 (This decision has since been reversed)<br />
[15]. Supra footnote 51.<br />
[16]. M. C. Mehta v. Union of India, (1986) 2 SCC 176<br />
[17]. Shantisar Builders Vs. L. Narayan, (1990) 1 SCC 520<br />
[18]. M. C. Mehta v. Union of India, (1991) 2 SCC 353<br />
[19]. Pranab Mukherjee's note of caution on judicial activism PTI Sep 8, 2012, 07.33PM IST<br />
[20]. SC asks courts to curb judicial activism Sanjay K Singh, TNN Dec 11, 2007, 12.49am IST<br />
[21]. “<strong>Judicial</strong> Activism v. <strong>Judicial</strong> Self-Restraint” athttp://legalsutra.org/933/judicial-activism-v-judicial-self-restraint/ as last on 10<br />
July, 2011<br />
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Attachment B<br />
Selective <strong>Judicial</strong> Activism<br />
Page 110 of 115
Selective <strong>Judicial</strong> Activism<br />
JUSTICE BRENNAN: LIBERAL CHAMPION. By Seth Stern & Stephen Wermiel.<br />
Houghton Mifflin Harcourt. 2010. Pp. 688, $35.00.<br />
Geoffrey R. Stone *<br />
When the term “judicial activist” was first coined by Arthur<br />
Schlesinger, Jr. in 1947, it “did not have a derogatory connotation.” 1 By the<br />
time William J. Brennan, Jr. had completed his thirty-four years on the<br />
Supreme Court, the phrase had become a pejorative, implying the<br />
irresponsible exercise of judicial authority.<br />
Critics on and off the Court have vilified Brennan and his liberal<br />
colleagues for their activism. In 1966, the political scientist Robert<br />
McCloskey accused Brennan and his fellow “judicial activists” of creating<br />
“Constitutional rules out of whole cloth.” 2 Judge Learned Hand complained<br />
that the “judicial activists” on the Supreme Court were acting like “a bevy of<br />
Platonic guardians.” 3 Anthony Lewis reported that critics had vehemently<br />
attacked “judicial activists” like Brennan for “taking too much joy” in their<br />
own power and “trying too boldly to fix up the wrongs of our system.” 4 And<br />
Justice Felix Frankfurter castigated the “judicial activists” for making<br />
decisions on the basis of “‘their prejudices and their respective pasts and selfconscious<br />
desires to join Thomas Paine and T. Jefferson in the Valhalla of<br />
“liberty.”’” 5 To this day, no Supreme Court nominee—not Anthony<br />
Kennedy, not Ruth Bader Ginsburg, not John Roberts, not Elena Kagan—has<br />
dared to describe him or herself as a “judicial activist.” Such a selfcharacterization<br />
would certainly be the kiss of death for any nominee.<br />
* Edward H. Levi Distinguished Service Professor of Law, The University of Chicago. I<br />
would like to thank the University of Chicago Law School’s Leonard Sorkin Law Faculty Fund for<br />
its generous support of my work and, most especially, Justice William J. Brennan, Jr., for giving me<br />
the extraordinary opportunity to serve as one of his law clerks during the Supreme Court’s 1973<br />
Term.<br />
1. SETH STERN & STEPHEN WERMIEL, JUSTICE BRENNAN: LIBERAL CHAMPION 232 (2010).<br />
2. Id. at 232–33 (quoting Robert G. McCloskey, Reflections on the Warren Court, 51 VA. L.<br />
REV. 1229, 1259 (1965)).<br />
3. Id. at 231 (quoting LEARNED HAND, THE BILL OF RIGHTS: THE OLIVER WENDELL HOLMES<br />
LECTURES 1958, at 73 (1958)).<br />
4. Id. at 231 (quoting Anthony Lewis, Supreme Court Moves Again to Exert Its Powerful<br />
Influence, N.Y. TIMES, June 20, 1964, at E3).<br />
5. Id. at 102 (quoting Melvin I. Urofsky, Conflict Among the Brethren: Felix Frankfurter,<br />
William O. Douglas and the Clash of Personalities and Philosophies on the United States Supreme<br />
Court, 1988 DUKE L.J. 71, 105 (1988)).
1424 Texas Law Review [Vol. 89:1423<br />
Is the pejorative “judicial activist” warranted? To answer that question,<br />
we must begin with the Court’s economic substantive due process decisions<br />
in cases like Lochner v. New York, 6 half a century before William Brennan<br />
joined the Court. Lochner and its progeny, which held unconstitutional a<br />
broad range of progressive legislation regulating such matters as maximum<br />
hours and minimum wages, represented a highly controversial form of<br />
conservative judicial activism. Over time, Lochner, the bête noire of<br />
progressives of that era, came to be “one of the most condemned cases in<br />
United States history.” 7<br />
Critics of the Lochner-era jurisprudence took away two quite distinct<br />
lessons. Some, like Frankfurter, concluded that judicial activism was<br />
presumptively illegitimate and unwarranted. The only principled stance for a<br />
responsible Justice was one of judicial restraint. As Seth Stern and Stephen<br />
Wermiel aptly observe, “Frankfurter believed firmly that judges should act<br />
with restraint and largely defer to the elected branches.” 8 Indeed, this was<br />
“something he had preached as a professor at a time when a conservative<br />
Supreme Court was overturning the progressive economic regulations . . .<br />
that he favored.” 9 It was for this reason that Frankfurter was so condemning<br />
of his “judicial activist” colleagues on the Court.<br />
Other critics of Lochner, like Hugo Black, William O. Douglas, and<br />
William Brennan, took away a very different lesson. In their view, Lochner<br />
was wrong not because judicial activism is wrong, but because Lochner was<br />
not an appropriate case for judicial activism. It was this view that Chief<br />
Justice Harlan Fiske Stone set forth in 1938 in his famous footnote 4 in<br />
United States v. Carolene Products Co. 10 While burying the doctrine of<br />
economic substantive due process, Stone at the same time suggested that<br />
“[t]here may be narrower scope for operation of the presumption of<br />
constitutionality when legislation . . . restricts those political processes which<br />
can ordinarily be expected to bring about repeal of undesirable legislation,”<br />
or when it discriminates “against discrete and insular minorities” in<br />
circumstances in which it is reasonable to infer that prejudice, intolerance, or<br />
indifference might seriously have curtailed “the operation of those political<br />
processes ordinarily to be relied upon to protect minorities . . . .” 11<br />
It was this conception of selective judicial activism that shaped<br />
Brennan’s jurisprudence. It is important to emphasize that, Frankfurter to the<br />
contrary notwithstanding, this view of the judicial role is not necessarily the<br />
product of individual Justices’ personal “prejudices” and experiences.<br />
6. 198 U.S. 45 (1905).<br />
7. BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION 23 (1980).<br />
8. STERN & WERMIEL, supra note 1, at 101.<br />
9. Id.<br />
10. 304 U.S. 144 (1938).<br />
11. Id. at 152–53 n.4.
2011] Selective <strong>Judicial</strong> Activism 1425<br />
Rather, it is deeply rooted in the original understanding of the purpose of<br />
judicial review in our system of constitutional governance.<br />
The Framers of our Constitution wrestled with the problem of how to<br />
cabin the dangers of an overbearing or intolerant majority. For example,<br />
those who initially opposed a bill of rights argued that such a list of rights<br />
would serve little, if any, practical purpose, for in a self-governing society<br />
the majority could simply disregard whatever rights might be “guaranteed” in<br />
the Constitution. In the face of strenuous objections from the Anti-<br />
Federalists during the ratification debates, however, it became necessary to<br />
reconsider the issue.<br />
On December 20, 1787, Thomas Jefferson wrote James Madison from<br />
Paris that, after reviewing the proposed Constitution, he regretted “the<br />
omission of a bill of rights.” 12 In response, Madison expressed doubt that a<br />
bill of rights would “provide any check on the passions and interests of the<br />
popular majorities.” 13 He maintained that “experience proves the inefficacy<br />
of a bill of rights on those occasions when its controul is most needed.<br />
Repeated violations of these parchment barriers have been committed by<br />
overbearing majorities in every State” that already had a bill of rights. 14 In<br />
such circumstances, he asked, “What use . . . can a bill of rights serve in<br />
popular Governments?” 15<br />
Jefferson replied, “Your thoughts on the subject of the Declaration of<br />
rights” fail to address one consideration “which has great weight with me, the<br />
legal check which it puts into the hands of the judiciary. This is a body,<br />
which if rendered independent . . . merits great confidence for their learning<br />
& integrity.” 16 This exchange apparently carried some weight with Madison.<br />
On June 8, 1789, Madison proposed a bill of rights to the House of<br />
Representatives. At the outset, he reminded his colleagues that “the greatest<br />
danger” to liberty was found “in the body of the people, operating by the<br />
majority against the minority.” 17 Echoing Jefferson’s letter, he stated the<br />
position for judicial review, contending that if these rights are:<br />
incorporated into the constitution, independent tribunals of justice will<br />
consider themselves . . . the guardians of those rights; they will be an<br />
impenetrable bulwark against every assumption of power in the<br />
legislative or executive; they will be naturally led to resist every<br />
12. Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), reprinted in JACK N.<br />
RAKOVE, DECLARING RIGHTS: A BRIEF HISTORY WITH DOCUMENTS 154, 156 (1998).<br />
13. RAKOVE, supra note 12, at 159.<br />
14. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), reprinted in RAKOVE,<br />
supra note 12, at 160, 161.<br />
15. Id. at 162.<br />
16. Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), reprinted in RAKOVE,<br />
supra note 12, at 165, 165.<br />
17. James Madison, Speech to the House of Representatives (June 8, 1789), reprinted in<br />
RAKOVE, supra note 12 at 170, 177.
1426 Texas Law Review [Vol. 89:1423<br />
encroachment upon rights expressly stipulated for in the constitution<br />
by the declaration of rights. 18<br />
This reliance on judges, whose lifetime tenure would hopefully insulate<br />
them from the need to curry favor with the governing majority, was central to<br />
the Framers’ understanding. Alexander Hamilton, for example, strongly<br />
endorsed judicial review as obvious and uncontroversial. The “independence<br />
of the judges,” he reasoned, is “requisite to guard the Constitution and the<br />
rights of individuals from the effects of those ill humours, which . . .<br />
sometimes disseminate among the people themselves” Judges, he insisted,<br />
have a duty to resist invasions of constitutional rights even if they are<br />
“instigated by the major voice of the community.” 19<br />
It was this “originalist” conception of judicial review that informed<br />
Justice Brennan’s selective judicial activism. As a rule, he gave a great deal<br />
of deference to the elected branches of government—except when he felt<br />
such deference would effectively abdicate the responsibility the Framers had<br />
imposed upon the Judiciary to serve as an essential check against the inherent<br />
dangers of democratic majoritarianism. He therefore invoked activist<br />
judicial review primarily in two situations: (1) when the governing majority<br />
systematically disregarded the interests of a historically underrepresented<br />
group (such as blacks, ethnic minorities, political dissidents, religious<br />
dissenters, women, and persons accused of crime), and (2) when there was a<br />
risk that a governing majority was using its authority to stifle its critics,<br />
entrench the status quo, and/or perpetuate its own political power.<br />
Because Brennan played so central a role in crafting many of the key<br />
decisions of the Warren Court, it may be useful to note just a few of those<br />
decisions to illustrate my point. Consider, for example, Brown v. Board of<br />
Education, 20 which prohibited racial segregation in public schools; Loving v.<br />
Virginia, 21 which invalidated laws forbidding interracial marriage; Engel v.<br />
Vitale, 22 which prohibited school prayer; Goldberg v. Kelly, 23 which<br />
guaranteed a hearing before an individual’s welfare benefits could be<br />
terminated; Reynolds v. Sims, 24 which guaranteed “one person, one vote”;<br />
Miranda v. Arizona, 25 which gave effect to the prohibition of compelled selfincrimination;<br />
Gideon v. Wainwright, 26 which guaranteed all persons accused<br />
of crime the right to effective assistance of counsel; New York Times v.<br />
18. Id. at 179.<br />
19. THE FEDERALIST NO. 78 (Alexander Hamilton).<br />
20. 347 U.S. 483 (1954).<br />
21. 388 U.S. 1 (1967).<br />
22. 370 U.S. 421 (1962).<br />
23. 397 U.S. 254 (1970).<br />
24. 377 U.S. 533 (1964).<br />
25. 384 U.S. 436 (1966).<br />
26. 372 U.S. 335 (1963).
2011] Selective <strong>Judicial</strong> Activism 1427<br />
Sullivan, 27 which limited the ability of public officials to use libel actions to<br />
silence their critics; and Elfbrandt v. Russell, 28 which protected the First<br />
Amendment rights of members of the Communist Party. Each of these<br />
decisions clearly reflected the central purpose of judicial review—to guard<br />
against the greatest dangers of majoritarian abuse. 29<br />
By definition, antimajoritarian decisions generally do not sit well with<br />
the majority. It is therefore hardly surprising that this jurisprudence excited<br />
biting criticism, especially in the political arena, where candidates curry<br />
favor with that very same majority. By the late 1960s, Richard Nixon was<br />
able to make the Court’s “judicial activism” a significant issue in national<br />
politics. During his nomination acceptance speech in 1968, for example, he<br />
insisted that the Court had “gone too far in weakening the peace forces as<br />
against the criminal forces in this country and we must act to restore that<br />
balance.” 30 Nixon decried the activism of the Warren Court and pledged to<br />
appoint “strict constructionists” rather than “judicial activists” to the Court.<br />
In the discourse of the time, a strict constructionist was a judge committed to<br />
judicial restraint. In a few short years, Nixon appointed Warren Burger,<br />
Harry Blackmun, Lewis Powell, and William Rehnquist to the Court.<br />
Although these Justices varied over time in their adherence to “strict<br />
constructionism,” their presence quickly transformed the Court, leaving<br />
Justice Brennan in the minority for the rest of his tenure.<br />
The change in the Court’s role since 1968 has been dramatic. In the<br />
twenty-five years between 1968 and 1993, shortly after Brennan left the<br />
Court, Republican presidents made twelve consecutive appointments to the<br />
Supreme Court. According to research by Lee Epstein, William Landes, and<br />
Richard Posner, in 1968 the average voting record of the five most liberal<br />
Justices (Marshall, Douglas, Brennan, Fortas, and Warren) in civil liberties<br />
cases was .185. (This is on a scale in which .000 is the most liberal and<br />
1.000 is the most conservative.) The swing Justice was Earl Warren, whose<br />
voting record was .263. 31 By 1993, after twelve consecutive Republican<br />
27. 376 U.S. 254 (1964).<br />
28. 384 U.S. 11 (1966).<br />
29. Many of these decisions reflected, indirectly if not directly, the “gravitational pull” of the<br />
quest for racial justice and equality. See Burt Neuborne, The Gravitational Pull of Race on the<br />
Warren Court, 2010 SUP. CT. REV. (forthcoming 2011) (manuscript at 9–27) (on file with Texas<br />
Law Review) (arguing that race exercised a strong influence on the Warren Court’s federalism,<br />
separation of powers, and First Amendment jurisprudence); HARRY KALVEN, JR., THE NEGRO AND<br />
THE FIRST AMENDMENT 4 (1965) (arguing that recent constitutional decisions relating to race and<br />
free speech challenge the law’s prior conceptions of racial equality).<br />
30. Richard M. Nixon, Presidential Nomination Acceptance Speech (Aug. 8, 1968) (transcript<br />
available at http://www.presidency.ucsb.edu/ws/index.php?pid=25968).<br />
31. See LEE EPSTEIN, WILLIAM M. LANDES AND RICHARD A. POSNER, ARE JUDGES REALISTS?<br />
AN EMPIRICAL STUDY tbl.3-2 (forthcoming HARV. L. REV. 2011); see also Geoffrey R. Stone,<br />
Understanding Supreme Court Confirmations, 2010 SUP. CT. REV. (forthcoming 2011) (manuscript<br />
at 21) (on file with Texas Law Review).
1428 Texas Law Review [Vol. 89:1423<br />
appointments, the average voting record of the five most conservative<br />
Justices (Thomas, Rehnquist, Scalia, O’Connor, and Kennedy) was .798, and<br />
the swing Justice, Anthony Kennedy, had a voting record of .695. 32 Thus,<br />
the Court majority was roughly as conservative in 1993 as it had been liberal<br />
in 1968. Even more striking, by 1993 the “liberals” on the Court were<br />
almost as conservative as the “conservatives” on the Court in 1968. 33<br />
But what does “conservative” mean in the modern era? In Nixon’s<br />
time, the term meant a Justice committed to judicial restraint. But beginning<br />
with the Reagan era, this began to change. Justices like Antonin Scalia,<br />
Clarence Thomas, John Roberts, and Samuel Alito are anything but<br />
restrained. Rather, like Justice Brennan, they employ a form of selective<br />
judicial activism. On the one hand, it seems clear that these Justices would<br />
have joined few, if any, of the Warren Court decisions I mentioned earlier.<br />
On the other hand, though, despite all the conservative rhetoric about “strict<br />
constructionism,” “originalism,” “judicial restraint,” and “call[ing] balls and<br />
strikes,” 34 these conservative Justices have been just as activist as their liberal<br />
predecessors, but in a wholly different set of cases.<br />
In a series of unmistakably activist decisions, the conservative Justices<br />
have held unconstitutional affirmative action programs, 35 gun control<br />
regulations, 36 limitations on the authority of corporations to spend at will in<br />
the political process, 37 restrictions on commercial advertising, 38 laws<br />
prohibiting groups like the Boy Scouts from discriminating on the basis of<br />
sexual orientation, 39 federal legislation regulating guns, age discrimination,<br />
32. EPSTEIN ET AL., supra note 31.<br />
33. The four conservatives in 1968 (Harlan, White, Stewart, and Black) had an average voting<br />
record of .521, whereas the four liberals in 1993 (Stevens, Souter, Blackmun, and White) had an<br />
average voting record of .436. See EPSTEIN, LANDES & POSNER, supra note 31, at tbl.3-2.<br />
34. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the<br />
United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of<br />
John G. Roberts, Jr., Supreme Court C.J. Nominee).<br />
35. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 747–78 (2007)<br />
(holding unconstitutional an affirmative action program that took race into account when<br />
determining school placement).<br />
36. See McDonald v. City of Chi., 130 S. Ct. 3020, 3050 (2010) (holding that the Second<br />
Amendment is applicable to the states and remanding the case for further proceedings); D.C. v.<br />
Heller, 554 U.S. 570, 595, 635 (2008) (holding that D.C.’s ban on handgun possession in the home<br />
violated the individual right to bear arms conferred by the Second Amendment).<br />
37. See Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 913 (2010) (holding that<br />
“[t]he First Amendment does not permit Congress to make . . . categorical distinctions based on the<br />
corporate identity of the speaker and the content of the political speech”).<br />
38. See Thompson v. W. States Med. Ctr., 535 U.S. 357, 376–77 (2002) (“If the Government’s<br />
failure to justify its decision to regulate speech were not enough to convince us that the FDAMA’s<br />
advertising provisions were unconstitutional, the amount of beneficial speech prohibited by the<br />
FDAMA would be. . . . [W]e affirm the . . . judgment that the speech-related provisions . . . are<br />
unconstitutional.”).<br />
39. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 661 (2000) (overturning application of a state<br />
public accommodations law that would have prohibited discrimination based on sexual orientation).
2011] Selective <strong>Judicial</strong> Activism 1429<br />
the environment, and violence against women, 40 and policies of the State of<br />
Florida relating to the outcome of the 2000 presidential election. 41<br />
Nothing about this jurisprudence smacks of “judicial restraint.” To the<br />
contrary, it has about it the distinctive air of Platonic guardianship. The<br />
challenge is to figure out what theory of judicial review or constitutional law<br />
drives this particular form of activism. Although one can readily discern the<br />
specific conception of judicial review that undergirds Justice Brennan’s use<br />
of judicial activism, which is clearly rooted in the concerns of Jefferson,<br />
Madison, and Hamilton, no similar principle of judicial review or<br />
constitutional methodology explains the jurisprudence of contemporary<br />
conservative judicial activists. To understand Brennan’s theory of activist<br />
judicial review, all one needs to do is to look at the results and then ask,<br />
“Why these cases and not others?” If one attempts the same inquiry of the<br />
decisions of the current conservative Justices, however, no principled<br />
explanation emerges for their version of selective activism. Rather, to return<br />
to Justice Frankfurter’s ill-tempered observation, the selective activism of<br />
Justices like Scalia, Thomas, Roberts, and Alito seems to be born out of<br />
“‘their prejudices and their respective pasts and self-conscious desires to join<br />
[Ronald Reagan and George W. Bush] in the Valhalla of “liberty.”’” 42 The<br />
point, in other words, is that judicial activism itself is neither inherently good<br />
nor inherently bad. It is a legitimate and essential method of constitutional<br />
interpretation when used in appropriate circumstances.<br />
I sometimes wonder what constitutional law might look like today if<br />
Justices with the same vision as Justice Brennan had remained a majority on<br />
the Supreme Court over the past forty years. It is not so difficult to imagine<br />
such a state of affairs. Had Hubert Humphrey defeated Richard Nixon,<br />
Jimmy Carter defeated Ronald Reagan, or Al Gore defeated George W.<br />
Bush, the path of constitutional law might have been very different. What is<br />
more difficult to imagine is how constitutional law might have evolved in<br />
that counterfactual universe. It has been so long since there has been a<br />
liberal majority on the Court that it is difficult even to conceive what a liberal<br />
jurisprudence might look like today.<br />
40. See Printz v. United States, 521 U.S. 898, 933 (1997) (holding that “[t]he mandatory<br />
obligation imposed on CLEOs to perform background checks on prospective handgun purchasers<br />
plainly runs afoul of [the law]”); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000) (holding<br />
“that the [Age Discrimination in Employment Act] is not a valid exercise of Congress’ power”);<br />
Solid Waste Agency v. United States Army Corps of Eng’rs, 531 U.S. 159, 174 (2001) (holding a<br />
federal law claiming jurisdiction over ponds and mudflats was unconstitutional); United States v.<br />
Morrison, 529 U.S. 598, 627 (2000) (holding that a federal law dealing with violence against<br />
women was not constitutional).<br />
41. See Bush v. Gore, 531 U.S. 98, 103 (2000) (invalidating Florida’s “use of standardless<br />
manual recounts” as violative of the “Equal Protection and Due Process Clauses”).<br />
42. STERN & WERMIEL, supra note 1, at 102 (quoting Melvin I. Urofsky, Conflict Among the<br />
Brethren: Felix Frankfurter, William O. Douglas and the Clash of Personalities and Philosophies<br />
on the United States Supreme Court, 1988 DUKE L.J. 71, 105).
1430 Texas Law Review [Vol. 89:1423<br />
Here are some possibilities: the counterfactual Court might have held,<br />
not that affirmative action is unconstitutional, but that it is sometimes<br />
constitutionally required; it might have held, not that cigarette companies<br />
have a constitutional right to shill their products to children, 43 but that<br />
children have a constitutional right to an adequate and equal education; 44 it<br />
might have held not that silence constitutes waiver of the right to remain<br />
silent, 45 but that individuals accused of a crime have a constitutional right to<br />
DNA testing; it might have held, not that the government can constitutionally<br />
ban partial birth abortions, 46 but that it cannot constitutionally ban stem-cell<br />
research in order to enforce the faith-based beliefs of the religious right; it<br />
might have held, not that corporations have a constitutional right to spend<br />
millions to buy the elected representatives of their choice, 47 but that public<br />
officials cannot constitutionally use partisan gerrymandering to ensure their<br />
perpetuation in power; 48 it might have held, not that the Boy Scouts have a<br />
constitutional right to discriminate against gays and lesbians, 49 but that gays<br />
and lesbians have a constitutional right to marry.<br />
Constitutional interpretation is not a mechanical, value-free enterprise.<br />
It requires judges to exercise judgment. It calls upon them to consider text,<br />
history, precedent, values, and ever-changing social and cultural conditions.<br />
It requires restraint, wisdom, empathy, 50 and intelligence. Perhaps above all,<br />
it requires a recognition of the Judiciary’s unique strengths and weaknesses<br />
and a deep and accurate understanding of our nation’s most fundamental<br />
constitutional aspirations.<br />
43. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 566 (2001) (holding that regulations on<br />
tobacco advertising violate the First Amendment because they fail Central Hudson’s four-part<br />
analysis).<br />
44. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 54–55 (1973) (holding that the<br />
Texas system of financing public education rationally furthers a legitimate state purpose or interest<br />
and therefore satisfies the Equal Protection Clause).<br />
45. See Berghuis v. Thompkins, 130 S. Ct. 2250, 2264 (2010) (holding that unless a suspect<br />
explicitly invoked his Miranda rights he waived them by making voluntary statements and that<br />
police did not have to obtain a waiver of the suspect’s Miranda rights before interrogating him).<br />
46. See Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (holding that the Partial-Birth Abortion<br />
Ban Act of 2003 was not unconstitutional on its face).<br />
47. See Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 913 (2010) (holding that<br />
“[t]he First Amendment does not permit Congress to make . . . categorical distinctions based on the<br />
corporate identity of the speaker and the content of the political speech”).<br />
48. See Vieth v. Jubelirer, 541 U.S. 267, 281 (2004) (holding that “political gerrymandering<br />
claims are nonjusticiable” because there are no “judicially discernable and manageable standards for<br />
adjudicating political gerrymandering claims”).<br />
49. See Boy Scouts of America v. Dale, 530 U.S. 640, 644 (2000) (holding that applying New<br />
Jersey’s public accommodations law to require the Boy Scouts to readmit an avowed homosexual<br />
and gay rights activist violated the Boy Scouts’ First Amendment right of expressive association).<br />
50. Richard Cotton, one of Justice Brennan’s law clerks in the Court’s 1972 term, observed that<br />
Brennan “had the ability to see a case through the eyes of the people involved.” STERN &<br />
WERMIEL, supra note 1, at 206.
2011] Selective <strong>Judicial</strong> Activism 1431<br />
As Justice Brennan himself observed, the Supreme “‘Court is not a<br />
council of Platonic guardians given the function of deciding our most<br />
difficult and emotional questions according to the Justices’ own notions of<br />
what is just or wise or politic.’” 51 Rather, “‘our government structure assigns<br />
to the people’s elected representatives the function of making policy for<br />
handling the social and economic problems of state and nation’” and “‘the<br />
impropriety of a judiciary with life tenure writing its own social and<br />
economic creed into the Constitution is therefore clear.’” 52 At the same time,<br />
though, Brennan insisted that “‘[j]ust as an individual may be untrue to<br />
himself, so may society be untrue to itself.’” 53 The Court’s responsibility in<br />
interpreting and applying the Constitution, he rightly insisted, is to “‘keep the<br />
community true to its own fundamental principles.’” 54<br />
51. Id. at 233 (quoting Justice William James Brennan, The U.S. Constitution, Speech at<br />
Maxwell Air Force Base (Sept. 9, 1963), reprinted in 2 AIR WAR C. SUPPLEMENT 3, 43).<br />
52. Id. (quoting A Visit with Justice Brennan, LOOK, Dec. 18, 1962).<br />
53. Id. at 234 (quoting Justice William James Brennan, Bouton Lecture at Princeton University<br />
(Feb. 4, 1969)).<br />
54. Id.
Attachment C<br />
Proper <strong>Judicial</strong> Activism<br />
Page 111 of 115
PROPER JUDICIAL ACTIVISM<br />
Greg Jones*<br />
<strong>Judicial</strong> review, and judicial activism in particular, have never<br />
enjoyed a wealth of popular support in this country. Indeed, the practice<br />
of judges overturning legislative enactments has been the subject of<br />
several sharp critiques over the years, particularly in the area of<br />
constitutional law. As President, Ronald Reagan described the kinds of<br />
judges of which he disapproves as those who love "short-circuiting the<br />
electoral process and disenfranchising the people through judicial<br />
activism." 1 His one-time nominee to the Supreme Court, Robert Bork,<br />
has commented that "[wle have known judicial activism of the right and<br />
of the left; neither is legitimate." 2 Regardless of ideology, it has become a<br />
staple of opponents of a particular judicial decision to accuse the court of<br />
activism, which is synonymous with an affront. 3<br />
Despite its negative connotation, judicial activism, in several forms,<br />
has a long, if not storied, tradition in this country. Since Marbury v.<br />
Madison, 4 striking down legislation passed at the federal and state levels<br />
has been met with varying degrees of acceptance and criticism. It is the<br />
premise of this paper that in constitutional law there is a correct kind of<br />
judicial activism, toward which the Supreme Court should be focused. As<br />
mandated by the Constitution, the proper form of judicial activism is<br />
activism based upon preserving the structure of our constitutional<br />
government. Professor Steven Calabresi comments, "There is nothing in<br />
the U.S. Constitution that should absorb more completely the attention<br />
of the U.S. Supreme Court" than the structures embedded in "[t]hat<br />
great document." s This article aims to demonstrate that a faithful<br />
rendering of the Constitution by the Supreme Court demands<br />
* Law clerk to Chief Justice Roy S. Moore of the Alabama Supreme Court; J.D.,<br />
Regent University School of Law.<br />
1 Ronald Reagan, I PUB. PAPERS 1270, (Oct. 21, 1985).<br />
2 Id. at 41, Jan. 14, 1988. In describing Bork and his "disciples," Professor Harry<br />
Jaffa says they believe "that judicial activism is usurpation, denying to the political<br />
processes of democracy their rightful role in governance." Harry V. Jaffa, Jaffa Replies to<br />
His Critics 235 app. IV-A, at 292 (The Closing of the Conservative Mind) in ORIGINAL<br />
INTENT AND THE FRAMERS OF THE CONSTITUTION (Harry V. Jaffa et al., 1994). In part, that<br />
is exactly the sentiment this paper hopes to refute. Proper judicial activism flows from the<br />
nature of our system, as will be shown, and as such is not usurpation.<br />
3 See David L. Anderson, Note, When Restraint Requires Activism: Partisan<br />
Gerrymandering and the Status Quo Ante, 42 STAN. L. REV. 1549, 1559 (1990).<br />
4 5 U.S. (1 Cranch) 137 (1803).<br />
5 Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In<br />
Defense of United States v. Lopez, 94 MIcH. L. REV. 752, 770 (1995).<br />
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concentration on the structures of government as the most justified and<br />
least dangerous way to practice judicial review.<br />
To explain and substantiate this claim, it is necessary to divide this<br />
paper into five parts. Part I defines the terms involved in order to help<br />
the reader better understand what is and is not being argued. Part II<br />
explains the vast importance of structure to our constitutional scheme as<br />
it relates to the Founding and today. Part III spells out why judicial<br />
review is a tool best employed on the structural front. Part IV examines<br />
some criticisms of and alternatives to the approach espoused here, as<br />
well as some responses to those various views. Finally, Part V reflects on<br />
why this argument is important to our world today and to the<br />
government in which we participate.<br />
I. DEFINITIONS<br />
In general terms, the structures of the Constitution are not difficult<br />
to discover or define. They include the separation of powers, checks and<br />
balances, federalism, bicameralism, representation, an independent<br />
judiciary, and judicial review. 6 Many of these structures are rarely, if<br />
ever, questioned on propriety or efficacy grounds. "Elections are held<br />
when they are supposed to be held, presidents and congresses come and<br />
go, California and Wyoming send two representatives to the Senate,<br />
[and] constitutional amendments are proposed and are almost always<br />
defeated . . . ."7 Most of these structures have held a consistent definition<br />
since the Founding; after all, little is left to the imagination when the<br />
Constitution says that Congress shall consist of two houses or that a<br />
senator has a six-year term of office. Two of these structures, however,<br />
have displayed fluid tendencies over the years, causing many to question<br />
their wisdom and even their very existence: the separation of powers and<br />
federalism. 8 Ironically, the Founders considered these the most<br />
important innovations placed in the Constitution, 9 and are the<br />
structures on which this article will focus.1 0<br />
6 Edwin Meese III, The Law of the Constitution, 61 TUL. L. REV. 979, 982 (1987).<br />
7 Steven G. Calabresi, The Tradition of the Written Constitution: A Comment on<br />
Professor Lessig's Theory of Translation, 65 FORDHAM L. REV. 1435, 1452 (1997).<br />
8 The legitimacy of judicial review has also been questioned at length, given the<br />
lack of any Constitutional text on the subject. However, there seems little doubt that,<br />
whether the device was intended by the Framers or not (this paper will make a structural<br />
argument that it was), it is not going away. As Professor Erwin Chemerinsky has pointed<br />
out, "What we really should be talking about is what is the appropriate content of judicial<br />
review, not whether the power exists or not." Erwin Chemerinsky, The Goldwater Institute<br />
and the Federalist Society: Federalism and <strong>Judicial</strong> Mandates, 28 ARIz. ST. L.J. 17, 51<br />
(1996). That is exactly what this paper is about-the appropriate content of judicial review.<br />
9 WILLIAM EATON, WHO KILLED THE CONSTITUTION: THE JUDGES V. THE LAW 3<br />
(1988): "The Founding Fathers understood thoroughly the corruptions of power and the<br />
temptations of office. They feared most of all the tyranny of unchecked government power.<br />
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PROPER JUDICIAL ACTIVISM<br />
The concept of judicial activism requires some careful elucidation. It<br />
falls under the rubric of what is commonly called judicial review."<br />
<strong>Judicial</strong> review occurs, as Justice Marshall famously put it,<br />
If a law be in opposition to the constitution; if both the law and the<br />
constitution apply to a particular case, so that the court must either<br />
decide that case conformably to the law, disregarding the constitution;<br />
or conformably to the constitution, disregarding the law; the court<br />
must determine which of these conflicting rules governs the case. 12<br />
At the broadest level, judicial activism is any occasion where a court<br />
intervenes and strikes down a piece of duly enacted legislation. This is<br />
activism because it "impose Is] a judicial solution over an issue erstwhile<br />
subject to political resolution." 13 The key to categorizing this broad<br />
definition of activism is determining on what basis the legislation or<br />
policy is struck down.<br />
For instance, Professor Lino Graglia describes judicial activism as<br />
"the practice by judges of disallowing policy choices by other<br />
governmental officials or institutions that the Constitution does not<br />
clearly prohibit." 1 4 Professor Graglia's version of activism is actually<br />
improper judicial activism because it possesses no constitutional basis.<br />
However, rarely, if ever, does a judge admit in an opinion that his<br />
And so they fashioned a system of checks and balances to operate against the institutions<br />
of government to which particular powers are granted." Id.<br />
10 While I will elaborate extensively on these devices, it is important to note that<br />
this paper does not attempt to present any definitive standards the Supreme Court ought<br />
to use in the line-drawing problems raised in cases dealing with these issues. What is an<br />
executive function as opposed to a legislative one, how much sovereignty do the states<br />
retain, and how far does the power to regulate commerce extend are all intriguing<br />
questions, but each are topics for full papers in themselves.<br />
For some sample answers to these questions along the lines of the kind of<br />
jurisprudence espoused in this paper, see Gary Lawson & Patricia Granger, The "Proper"<br />
Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE<br />
L.J. 267 (1993) (arguing for a structural interpretation of the Necessary and Proper Clause<br />
which fundamentally restricts its scope); Thomas W. Merrill, Toward a Principled<br />
Interpretation of the Commerce Clause, 22 HARV. J.L. & PUB. PoL'Y 31 (1998) (presenting a<br />
clearer alternative to the understanding in Lopez of the Commerce Clause for the purpose<br />
of enabling the Court to continue to police constitutional limitations on federal power);<br />
Bernard Schwartz, Of Administrators and Philosopher-Kings: The Republic, the Laws, and<br />
Delegations of Power, 72 Nw. U. L. REV. 443, 446 (1977) (reflecting on the practical nonexistence<br />
of the current delegation doctrine).<br />
My concern is drawing attention to the intrinsic nature and importance of these<br />
structures, and consequently, the need for vigorous judicial policing in these areas.<br />
I Of course, judicial activism also can occur when no constitutional question is at<br />
issue. This paper, however, focuses on the use of activism in constitutional cases.<br />
12 Marbury v. Madison, 5 U.S. 137, 178 (1803).<br />
13 See Anderson, supra note 3, at 1570.<br />
14 Lino A. Graglia, It's Not Constitutionalism, It's <strong>Judicial</strong> Activism, 19 HARV. J.L.<br />
& PUB. POL'Y 293, 296 (1996).<br />
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decision does not come from the Constitution. Thus, more precision is<br />
necessary to differentiate proper from improper activism.<br />
Improper activism finds its roots in the "belief that law is only<br />
policy and that the judge should concentrate on building the good society<br />
according to the judge's own vision."' 5 Judge William Wayne Justice, 16 a<br />
self-proclaimed activist, is illustrative when he describes his own<br />
thinking in a certain case: "Having found a constitutional violation by a<br />
state institution, I acted upon the belief that simply declaring a practice<br />
unconstitutional was not the limit of my duty as a judge. Judges are<br />
more than social critics. The power of law and justice lies in actions, not<br />
pronouncements." 17 Thus, this kind of activism employs "natural law or<br />
basic notions of humanity, land] the necessary consultation of<br />
extratextual source[s] for constitutional interpretation." 18 It is the kind<br />
of activism Judge Skelly Wright called, when referring approvingly to<br />
the Warren Court, "judging in the service of conscience." 19<br />
In contrast, proper judicial activism stresses restraint, even when<br />
striking down duly enacted legislation.<br />
In this understanding of judicial review, the power to initiate policy<br />
remains with the legislature or the executive. The Court merely<br />
exercises a judicial veto in the event that an act of one of the other<br />
branches of government goes beyond the power granted to that branch<br />
by the Constitution, or is in conflict with some provision of the<br />
Constitution. 20<br />
While practicing this "restraint in activism," it is my contention that<br />
the Supreme Court's focus ought to be on the structures of the<br />
Constitution, especially the separation of powers and federalism. In<br />
discussing the history of Supreme Court judicial review, Calabresi notes,<br />
"The Supreme Court's main role until 1937 was to police the lines of<br />
jurisdictional competence set out in the constitutional text ....<br />
Federalism and separation of powers were thus core concerns of<br />
American constitutional law .. ."21 They should be again.<br />
As we shall see, proper judicial activism focuses on policing the<br />
boundaries of power between the jurisdictional government entities<br />
15 Archibald Cox, The Role of the Supreme Court: <strong>Judicial</strong> Activism or Self-<br />
Restraint, 47 MD. L. REV. 118, 121-22 (1987).<br />
16 United States District Court for the Eastern District of Texas.<br />
17 William Wayne Justice, The Two Faces of <strong>Judicial</strong> Activism, 61 GEO. WASH. L.<br />
REV. 1, 10 (1992).<br />
18 Id. at 4.<br />
19 J. Skelly Wright, The <strong>Judicial</strong> Right and the Rhetoric of Restraint: A Defense of<br />
<strong>Judicial</strong> Activism in an Age of Conservative Judges, 14 HASTINGS CONST. L.Q. 487, 489<br />
(1987).<br />
20 See EATON, supra note 9, at 17.<br />
21 Steven G. Calabresi, Textualism and the Countermajoritarian Difficulty, 66 GEO.<br />
WASH. L. REV. 1373, 1375 (1988) (footnotes omitted).<br />
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PROPER JUDICIAL ACTIVISM<br />
within our system. Improper activism seeks to substantively correct<br />
perceived injustices in the law through the use of any number of extraconstitutional<br />
sources. The bottom line reason why the former is to be<br />
preferred to the latter is that judicial review based upon the Constitution<br />
demands nothing less. As Judge Frank Easterbrook 22 puts it, "The text of<br />
the Constitution is about structure - about form. Application of the<br />
Marbury principle means that rules . .. must be applied mechanically.<br />
Anything else is faithless to the premise of constitutionalism.23<br />
II. OUR CONSTITUTIONAL SCHEME AND THE IMPORTANCE OF STRUCTURE<br />
A. The Principles of Structure<br />
On a recent visit to the campus of Regent University, Associate<br />
Justice of the Supreme Court Antonin Scalia made an observation to the<br />
matriculating law students that where Constitutional Law is concerned,<br />
"structure is destiny." 24 Stalwart proponents of the Bill of Rights would<br />
disagree, but the point still maintains cogent force. To put Justice<br />
Scalia's point a slightly different way, "[T]he text of our written<br />
Constitution devotes only fifty-two words to the protection of individual<br />
liberty from the depredations of state government in the Fourteenth<br />
Amendment, while devoting several thousand words to the subject of<br />
allocating and dividing power among government institutions." 25 That<br />
point reminds us of something that many tend to forget: the whole of our<br />
Constitution was written without a Bill of Rights originally in mind.<br />
James Wilson said, "[Ilt would have been superfluous and absurd to<br />
have stipulated with a fcederal body of our own creation, that we should<br />
enjoy those privileges, of which we are not divested either by the<br />
intention or the act [the Constitution], that has brought that body into<br />
existence." 26 When we keep this fact in mind, the awesome importance of<br />
22 United States Court of Appeals for the Seventh Circuit.<br />
?3 Frank H. Easterbrook, Formalism, Functionalism, Ignorance, Judges, 22 HARV.<br />
J.L. & PUB. POL'Y 13, 18 (1998).<br />
24 Justice Antonin Scalia, Address at Regent University (Fall 1998).<br />
25 Calabresi, supra note 21, at 1376-77.<br />
26 JAMES WILSON, JAMES WILSON'S SPEECH AT A PUBLIC MEETING (October 6, 1787),<br />
reprinted in 1 DEBATE ON THE CONSTITUTION, at 64 (Bernard Bailyn ed., 1993) [hereinafter<br />
1 DEBATES]. Several other Founders made similar statements. See Answers to Mason's<br />
"Objections", "Marcus" [James Iredell] I-V, NORFOLK AND PORTSMOUTH JOURNAL, Feb. 20,<br />
1788, in 1 DEBATES, supra, at 364; Benjamin Rush, Benjamin Rush to David Ramsay,<br />
COLUMBIAN HERALD (Charleston, S.C.), Apr. 19, 1788, reprinted in 2 DEBATE ON THE<br />
CONSTITUTION, 417 (Bernard Bailyn ed., 1993) [hereinafter 2 DEBATES]; John Marshall on<br />
the Fairness and Jurisdiction of the Federal Courts, in 2 DEBATES, supra, at 740.<br />
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structure to our constitutional scheme, in the light of history, becomes<br />
more readily apparent. 27<br />
Chief Justice John Marshall reminds us that "[tihe security of a<br />
people against the misconduct of their rulers, must lie in the frequent<br />
recurrence to first principles, and the imposition of adequate<br />
constitutional restrictions." 28 Following the jurist's sage advice, we start<br />
with the first principles upon which the structure of this government<br />
was designed to operate. The overarching practical principle guiding the<br />
Founders was a fear of the concentration of political power in<br />
government. "[I]t would be difficult to deny that in establishing their<br />
complex structure, the Framers were virtually obsessed with a fear -<br />
bordering on what some might uncharitably describe as paranoia - of the<br />
concentration of political power." 29 This fear arose out of another first<br />
principle, that man by his nature is corrupt. Madison stated it<br />
exquisitely:<br />
It may be a reflection on human nature, that such devices should<br />
be necessary to controul the abuses of government. But what is<br />
government itself but the greatest of all reflections on human nature?<br />
If men were angels, no government would be necessary. If angels were<br />
to govern men, neither external nor internal controuls on government<br />
would be necessary. In framing a government which is to be<br />
administered by men over men, the great difficulty lies in this: You<br />
must first enable the government to controul the governed; and in the<br />
next place, oblige it to controul itself. 30<br />
The "devices" he refers to are the structures of government. For, if it<br />
is true that "[e]nlightened statesmen will not always be at the helm," 3 1<br />
then "the defect must be supplied, by so contriving the interior structure<br />
of the government, as that its several constituent parts may, by their<br />
mutual relations, be the means of keeping each other in their proper<br />
places." 32 In essence, the Founders devised the tools of separation of<br />
powers, federalism, checks and balances, and judicial review to keep at<br />
27 "So convinced were the Framers that liberty of the person inheres in structure<br />
that at first they did not consider a Bill of Rights necessary." Clinton v. City of New York,<br />
524 U.S. 417, 450 (1998) (Kennedy, J., concurring).<br />
28 Fletcher v. Peck, 10 U.S. 87, 144 (1810).<br />
29 Martin H. Redish & Elizabeth J. Cisar, "If Angels Were to Govern". The Need for<br />
Pragmatic Formalism in Separation of Powers Theory, 41 DuKE L.J. 449, 451 (1991).<br />
30 THE FEDERALIST No. 51 (James Madison), reprinted in 2 DEBATES, supra note 26,<br />
at 164. As Madison observed elsewhere, "The latent causes of faction are thus sown in the<br />
nature of man; and we see them every where brought into different degrees of activity,<br />
according to different circumstances of civil society." THE FEDERALIST No. 10 (James<br />
Madison), reprinted in 1 DEBATES, supra note 26, at 406.<br />
31 THE FEDERALIST No. 10 (James Madison), reprinted in 1 DEBATES, supra note 26,<br />
at 407.<br />
32 THE FEDERALIST No. 51 (James Madison), reprinted in 2 DEBATES, supra note 26,<br />
at 163.<br />
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bay the grasping desires of people in government to obtain more power. 33<br />
The best way to achieve that result was to divide power among various<br />
individuals and groups. 34<br />
A third major principle underlying this system is that "The<br />
government of the United States has been emphatically termed a<br />
government of laws, and not of men." 35 This means that rules are<br />
followed despite circumstances and the law offers favor to no one. As<br />
Judge Bork put it during his confirmation hearings: "The judge, to<br />
deserve that trust and that authority, must be every bit as governed by<br />
law as is the Congress, the President, the State Governors and<br />
legislatures, and the American people. No one, including a judge, can be<br />
above the law." 36 Connected with this principle is the fact that we have a<br />
written constitution, which carries with it certain implications. 37<br />
The first implication of our written constitution is that "(tihe<br />
Constitution created a Federal government of limited powers." 38 The<br />
government, therefore, cannot enlarge or contract its powers without<br />
amending the Constitution. The second implication is that the courts<br />
usually should invoke the Constitution as an instrument of continuity in<br />
the system. This is how judges employed the Constitution originally. In<br />
the past, "Decisions holding acts unconstitutional had done no more than<br />
uphold or block legislative or executive initiatives." 39 The reason for this<br />
necessarily follows from the first implication: if the government's powers<br />
are limited and enumerated, then a judge invoking the Constitution has<br />
only so much material to call upon in making his decision. Charles<br />
Cooper, former clerk to Chief Justice Rehnquist, elaborates: "Once a<br />
33 See John Fonte & John Andrews, Why 'The Federalist' Belongs in the Classroom,<br />
INDEPENDENCE ISSUE PAPER (Independence Institute), Dec. 6, 1991, at<br />
http://i2i.org/SuptDocs/Education/FederalistBelongs.htm (last visited Nov. 15, 2001).<br />
In a sense, the entire American constitutional edifice of a democratic<br />
republic with majority rule and minority rights, federalism, limited<br />
government, and the separation of powers among legislative, executive and<br />
judicial branches is based [upon] the Founders' concept of human nature as<br />
derived from their experience and their reading of history.<br />
34 See Calabresi, supra note 5, at 785-86.<br />
35 Marbury v. Madison, 5 U.S. 137, 163 (1803).<br />
36 Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the<br />
United States: Hearings Before the Comm. on the Judiciary, United States Senate, 100th<br />
Cong. 103 (1987) (opening statement of Robert H. Bork). This speaks to the boundaries<br />
within which a judge can make a ruling. Improper judicial activism, as I said earlier, relies<br />
on the judge's personal predilections of what the law should be, rather than what the law<br />
is. The hope is that structural activism is less likely to be used this way, and thus conforms<br />
to this important principle of our republic.<br />
37 Calabresi, supra note 7, at 1438.<br />
38 Gregory v. Ashcroft, 501 U.S. 452, 457 (1991); see also, United States v. Lopez,<br />
514 U.S. 549, 552 (1995) ("The Constitution creates a Federal Government of enumerated<br />
powers.").<br />
39 Cox, supra note 15, at 128.<br />
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judge ventures beyond the Constitution and the laws of our society, he<br />
has only his individual conscience to call upon, and a judge's conscience<br />
is not law." 40 In other words, the judge should not amend the<br />
Constitution. The Constitution should be a landmark of destination in<br />
constitutional jurisprudence, not a landmark of departure. The third<br />
implication of our written constitution is that judicial review is<br />
inferred. 41 Limited powers and written-down boundaries imply that<br />
there must be some enforcement of those provisions, since "Ithe<br />
distinction between a government with limited and unlimited powers is<br />
abolished, if those limits do not confine the persons on whom they are<br />
imposed." 42 Because "[uit is emphatically the province and duty of the<br />
judicial department to say what the law is," 43 the duty for policing the<br />
boundaries of Constitutional power falls prominently on the courts.<br />
In addition to a fear of centralized political power, the inherent<br />
corrupt nature of man, and the establishment of a government of laws<br />
with a written constitution, another key principle to understanding the<br />
role of structure in our government is the belief that "[n] o man is allowed<br />
to be a judge in his own cause; because his interest would certainly bias<br />
his judgment, and, not improbably, corrupt his integrity.""4 This rule<br />
represents another justification for judicial review. If Congress could<br />
pass laws without any check on whether the legislation was<br />
constitutional, it would "subvert the very foundation of all written<br />
constitutions," 5 because Congress, not the Constitution, would be the<br />
supreme law of the land. 46<br />
A final principle concerning structure and the foundation of our<br />
government, one that cannot be over-stressed, is that the constitutional<br />
design exists to protect the people, not just abstract ideas. In other<br />
words, "Any purported dichotomy between constitutional structure and<br />
40 Charles Cooper, Panel Discussion, supra note 8, at 59.<br />
41 See Marbury v. Madison, 5 U.S. 137, 177-78 (1803); see also supra text<br />
accompanying note 11; see also EATON, supra note 9, at 14.<br />
42 Marbury, 5 U.S. at 176-77.<br />
43 Id. at 177. This particular passage is often quoted as purported support by<br />
Marshall of judicial exclusivity in constitutional interpretation. The misrepresentation is<br />
unfortunate because all Marshall was referring to, in the context of the opinion, is the duty<br />
of the judiciary to explain the law when a case comes before it. Of course the judge will tell<br />
the parties what the law is in adjudicating a dispute; that does not mean that Congress<br />
and the President are not able to make their own determinations of what the Constitution<br />
means. Indeed, Congress does so each time it passes legislation.<br />
44 THE FEDERALIST NO. 10 (James Madison), reprinted in 1 DEBATES, supra note 26,<br />
at 406.<br />
45 Marbury, 5 U.S. at 178.<br />
46 John C. Yoo, The <strong>Judicial</strong> Safeguards of Federalism, 70 S. CAL. L. REV. 1311,<br />
1383 (1997); see also City of Boerne v. Flores, 521 U.S. 507, 529 (1997).<br />
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constitutional rights is a dangerous and false one." 47 Government<br />
institutions are designed to serve as buffers against encroachments on<br />
personal liberties. 4 8 This connects to the previous point that the Bill of<br />
Rights is not the whole or even the focus of the Constitution. The Bill of<br />
Rights was a supplement to the original Constitution, not a replacement.<br />
"The Bill of Rights and the structural elements of the Constitution<br />
should be viewed as a whole . . . ."49 To give short shrift to the structures<br />
of our Constitution is to do great violence to the system as a whole.<br />
"[Tihe entire Constitution was created to avoid tyranny and protect<br />
liberty. To separate out the individual rights provisions for special<br />
judicial protection ignores the document's careful intertwining of 'backup'<br />
systems." 50 Moreover, not only does "bifurcation between<br />
constitutional structure and substantive law" lead to unfaithful<br />
renderings of the text, it also "leads to most unsatisfactory<br />
conclusions."51<br />
These principles lead to one conclusion: that structure is vitally<br />
important to any proper understanding of the Constitution and,<br />
consequently, to proper use of judicial review. "The Framers of the<br />
Constitution could not command statesmanship. They could simply<br />
provide structures from which it might emerge." 52 The Founders did the<br />
only thing they could to provide for a lasting Constitution: frame the<br />
system for success, because after they died the substantive actions of<br />
government would be up to succeeding generations. If the system is<br />
ignored or, worse, deliberately sabotaged, then the parchment-inscribed<br />
words of the Constitution may as well turn to dust; the checks and<br />
balances designed to counteract man's power-hungry ambitions would be<br />
worthless, and even the precious freedoms embodied in the Bill of Rights<br />
would prove little protection against the onslaught of concentrated<br />
political power. 5 3<br />
47 Redish & Cisar, supra note 29, at 452.<br />
48 Id.<br />
49 Yoo, supra note 46, at 1392.<br />
50 Redish & Cisar, supra note 29, at 493.<br />
51 Richard A. Epstein, The Cartelization of Commerce, 22 HARV. J.L. & PUB. POL'Y<br />
209, 209 (1998). As usual, Epstein deals with the practical consequences of the structural<br />
theories on the market, rather than their logical pull. This particular article of Epstein's<br />
does not primarily focus on policy, but for an excellent piece focusing on this angle, see<br />
Richard A. Epstein, The Proper Scope of the Commerce Power, 73 VA. L. REV. 1387 (1987).<br />
52 Clinton v. City of New York, 524 U.S. 417, 452-53 (1998) (Kennedy, J.,<br />
concurring).<br />
53 See Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting).<br />
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B. The Framework of Structure<br />
1. Separation of Powers<br />
Given their general importance, it is prudent to examine more<br />
closely each of these structures, and how they are intended to work.<br />
Light will be shone on these structures, bearing in mind the impact that<br />
proper judicial activism should have on each. There were no secrets to<br />
the overarching plan of the Founders in writing the Constitution. They<br />
designed<br />
a national government of limited powers, with those powers divided<br />
among the three branches, each with a different function and different<br />
personnel, and all of this in the context of a federal system in which a<br />
large amount of the totality of all governmental power would be<br />
reserved to the states. 5 4<br />
Two major features of that design are separation of powers and<br />
federalism.<br />
In arguing for passage of the Constitution, Madison tells us that the<br />
"accumulation of all powers legislative, executive and judiciary in the<br />
same hands, whether of one, a few or many, and whether hereditary, self<br />
appointed, or elective, may justly be pronounced the very definition of<br />
tyranny." 5 Because of this, the Founders wrote the principle of<br />
separation of powers directly into the Constitution. 56 As noted above, the<br />
Founders' primary concern was preventing the concentration of political<br />
power, and the separation of powers went directly to this goal. The idea<br />
was grounded on "the deceptively simple principle that no branch may<br />
be permitted to exercise any authority definitionally found to fall outside<br />
its constitutionally delineated powers." 57 The theory holds that if a<br />
person or body is given power to do two or all three of these functions, it<br />
would be very easy to go against the people's wishes and deny freedom<br />
unjustly. For instance, if a person possessing such power promulgated a<br />
law ordering that all babies under the age of two should be killed, that<br />
person could implement the law as well using the executive power. There<br />
would be no way to prevent the execution of the unjust law. If the<br />
legislative and executive functions are divided as the Constitution<br />
provides, however, then the executive could simply refuse to implement<br />
54 Pasco Bowman, The Separation of Powers: Myth or Reality?, in DERAILING THE<br />
CONSTITUTION 114, 117 (Edward B. McLean ed., 1995).<br />
55 THE FEDERALIST NO. 47 (James Madison), reprinted in 2 DEBATES, supra note 26,<br />
at 121.<br />
56 "All legislative Powers herein granted shall be vested in a Congress of the United<br />
States .... U.S. CONST. art. I, § 1. "The executive Power shall be vested in a President of<br />
the United States of America." U.S. CONST. art. II, § 1, cl. 1. "The judicial power of the<br />
United States, shall be vested in one Supreme Court, and in such inferior Courts as<br />
Congress may from time to time ordain and establish." U.S. CONST. art. III, § 1.<br />
57 Redish & Cisar, supra note 29, at 453.<br />
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the unjust law, protecting the citizenry. Additionally, since the judicial<br />
department in such a system is separate and independent from the other<br />
two, it could declare the law void and have it thrown out altogether,<br />
using the power of judicial review.<br />
Of course, that is the theory. As the Supreme Court has noted, for<br />
the Founders, "[Tihe doctrine of separation of powers was not mere<br />
theory; it was a felt necessity." 58 Therefore, Madison and the others<br />
believed that "a mere demarkation [sic] on parchment of the<br />
constitutional limits of the several departments, is not a sufficient guard<br />
against those encroachments which lead to a tyrannical concentration of<br />
all the powers of government in the same hands." 59 They needed more<br />
than the words in the Constitution to insure that this vital principle<br />
would be observed. To that end, the Founders included what have<br />
become known as checks and balances in the framework of the<br />
Constitution. The goal was a government where "the powers of<br />
government should be so divided and balanced among several bodies of<br />
magistracy, as that no one could transcend their legal limits, without<br />
being effectually checked and restrained by the others." 60 When Madison<br />
said, "[aimbition must be made to counteract ambition," 61 he meant, in<br />
part, that each branch should watch the others. Thus, we have the<br />
Presidential veto, Senate confirmation of Presidential appointments,<br />
judicial appointments by the President, and so on. "[The Constitution]<br />
enjoins upon its branches separateness but interdependence, autonomy<br />
but reciprocity." 62<br />
The Founders were attacked for this "mixture" of powers, so<br />
ingrained was the idea of separation in the minds of the people.63 Yet,<br />
because they believed that the doctrine needed to be more than a<br />
"parchment barrier," the Founders stuck to their proposal.<br />
The men who met in Philadelphia in the summer of 1787 were<br />
practical statesmen, experienced in politics, who viewed the principle<br />
of separation of powers as a vital check against tyranny. But they<br />
likewise saw that a hermetic sealing off of the three branches of<br />
58 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 593 (1952) (Frankfurter,<br />
J., concurring).<br />
59 THE FEDERALIST No. 48 (James Madison), reprinted in 2 DEBATES, supra note 26,<br />
at 141.<br />
60 Id. at 139.<br />
61 THE FEDERALIST No. 51 (James Madison), reprinted in 2 DEBATES, supra note 26,<br />
at 164.<br />
62 Youngstown Sheet & Tube Co., 343 U.S. at 635 (Jackson, J., concurring).<br />
63 See, e.g., Reply to Wilson's Speech: "Centinel"[Samuel Bryan] 11 (1787), in 1<br />
DEBATES, supra note 26, at 77, 87; Reply to Wilson's Speech: "Cincinnatus"[Arthur Lee] V<br />
(1787), in 1 DEBATES, supra note 26, at 114, 117; Joseph Spencer to James Madison,<br />
Enclosing John Leland's Objections (1788), in 2 DEBATES, supra note 26, at 267, 269.<br />
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Government from one another would preclude the establishment of a<br />
Nation capable of governing itself effectively.64<br />
Out of the theory of separation comes the principle of nondelegation.<br />
Congress may not delegate its legislative power to the<br />
President, not only to prevent tyranny, but also to hold Congress<br />
accountable. 65 "Unchecked delegation would undercut the legislature's<br />
accountability to the electorate and subject people to rule through ad hoc<br />
commands rather than democratically considered general laws." 66 If<br />
Congress could delegate its legislative power to the executive, people<br />
could not find out easily who is responsible for legislation they disagree<br />
with or wish to change. 67 The non-delegation principle holds even though<br />
Congress presumably waives it voluntarily. This is because "the concept<br />
of congressional waiver ignores the fact that separation of powers<br />
protections were not inserted to protect the other branches, but rather to<br />
protect the populace." 68 So, not only is separation of powers designed to<br />
be a preventive measure against tyranny; it is also supposed to enhance<br />
the working of democracy. 69<br />
Separation of powers is clearly an important institutional tool, and<br />
as the Court has pointed out, "To preserve those checks, and maintain<br />
the separation of powers, the carefully defined limits on the power of<br />
each Branch must not be eroded." 70 The only questions remaining are:<br />
how are the lines between the branches drawn, and who is to draw<br />
them? The first question is beyond this paper's scope, and so it is<br />
minimally addressed. Traditionally, promulgation of laws is generally<br />
considered a legislative function, while their execution is considered an<br />
executive function, and interpretation of those laws in the context of a<br />
particular dispute is a judicial function. Defining which is which on some<br />
occasions is a difficult task, as even James Madison admitted. 71 No<br />
64 Buckley v. Valeo, 424 U.S. 1, 121 (1976).<br />
65 Field v. Clark, 143 U.S. 649, 692 (1892).<br />
66 David Schoenbrod, The Delegation Doctrine: Could the Court Give it Substance?,<br />
83 MICH. L. REV. 1223, 1224 (1985).<br />
67 Id. at 1244-45.<br />
68 Redish & Cisar, supra note 29, at 487. This point is similar to one we shall see<br />
later concerning federalism. Structural principles, just like the Bill of Rights, are first and<br />
foremost intended as protections for the people, not the government.<br />
69 Justice Kennedy puts it pointedly: "Abdication of responsibility is not part of the<br />
constitutional design." Clinton v. City of New York, 524 U.S. 417, 452 (1998) (Kennedy, J.,<br />
concurring). For a work expounding on the value of the separation of powers as a bulwark<br />
of liberty, see Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. PA. L.<br />
REV. 1513 (1991).<br />
70 INS v. Chadha, 462 U.S. 919, 957-58 (1983).<br />
71 James Madison to Thomas Jefferson (Oct. 24, 1787), reprinted in 1 DEBATES,<br />
supra note 26, at 192, 198. "Even the boundaries between the Executive, Legislative &<br />
Judiciary powers, though in general so strongly marked in themselves, consist in many<br />
instances of mere shades of difference." Id.<br />
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matter how they are defined in detail, because the Constitution explicitly<br />
states that the federal government only possesses those powers<br />
delegated to it (through written enumeration), "the separation of powers<br />
provisions clearly impose an absolute, rather than a conditional,<br />
standard of implementation." 72<br />
Tied closely to the necessity of an absolute standard is the answer to<br />
the second question: who draws the lines distinguishing power between<br />
the branches? This question dovetails directly with the themes of this<br />
paper. Two requirements are necessary to have a vigorous separation of<br />
powers doctrine: absolute standards and an independent judiciary. 73 The<br />
Founders believed that the courts would be a necessary part of<br />
separation enforcement. As mentioned above, checks and balances were<br />
a key ingredient to the Founders' version of separation of powers.<br />
<strong>Judicial</strong> review was one of those checks. Alexander Hamilton referred to<br />
the courts as "bulwarks of a limited constitution against legislative<br />
encroachments." 4 The Founders believed that "the courts were designed<br />
to be an intermediate body between the people and the legislature, in<br />
order, among other things, to keep the latter within the limits assigned<br />
to their authority." 75 Part of that protection includes holding fast to the<br />
separation of powers principle. This is one of the several reasons that the<br />
Constitution provides for an independent judiciary: an independent<br />
arbiter is needed to settle disputes of power between the executive and<br />
legislative branches. To have Congress decide for itself what powers it<br />
can delegate would violate the founding principle, discussed in Part A,<br />
that no one is to be the judge in his own case; the conflict of interest for<br />
Congress is obvious. 76 Conversely, leaving the decision to the President<br />
feeds the natural desire for power that the Founders sought so far as<br />
possible to squelch.<br />
Dividing the powers of government seems almost second nature to<br />
us, since it has been practiced for so long. At the Constitution's<br />
inception, it was considered a relatively new, scientific advance in the<br />
72 Redish & Cisar, supra note 29, at 503. For a work attempting to give an answer<br />
on how to define the powers along this line, see Schoenbrod, supra note 67 (offering a<br />
complex theory for the Court in attempting to enforce the delegation doctrine to replace the<br />
unworkable "intelligible principle" rule, and giving several reasons why it should do so. He<br />
argues for a qualitative test for proper delegation of power by Congress to the Executive, as<br />
opposed to a quantitative one).<br />
73 Redish & Cisar, supra note 29, at 458.<br />
74 THE FEDERALIST No. 78 (Alexander Hamilton), reprinted in 2 DEBATES, supra<br />
note 26, at 471-72.<br />
75 Id. at 470.<br />
76 Redish & Cisar, supra note 30, at 498.<br />
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practice of government. 77 It was deemed so important to the creation of<br />
the new government that the writers of the Constitution deliberately<br />
placed the powers of each branch of government in three separate<br />
articles of the document, to emphasize their distinct natures and unique<br />
responsibilities. Yet, separation for its own sake was not the goal, as we<br />
have seen with the simultaneous creation of the system of checks and<br />
balances. Protection of liberty, within a working system of government,<br />
was the goal. That is still the goal and the reason why judicial activism<br />
is necessary in this area. The judiciary fulfills its duty in the separation<br />
scheme, enforces congressional accountability, and protects the people as<br />
a whole when it enforces a strict separation of powers doctrine. 78<br />
2. Federalism<br />
On the subject of federalism, John Marshall stated that "[iun<br />
America, the powers of sovereignty are divided between the government<br />
of the Union, and those of the states. They are each sovereign, with<br />
respect to the objects committed to it, and neither is sovereign with<br />
respect to the objects committed to the other." 79 Put simply, "our<br />
Constitution establishes a system of dual sovereignty between the states<br />
and the Federal Government." 80 This design was nothing short of<br />
revolutionary, and, perhaps, not so simple. It was a common maxim of<br />
politics before the Constitution that two sovereign entities could not<br />
exist within the same boundaries. Anti-Federalists, such as Thomas<br />
Tredwell, pointed this out consistently as a flaw in the new<br />
governmental system. "The idea of two distinct sovereigns in the same<br />
country, separately possessed of sovereign and supreme power, in the<br />
same matters at the same time, is as supreme an absurdity, as that two<br />
distinct separate circles can be bounded exactly by the same<br />
circumference." 8 ' The idea understandably confused them, and even<br />
confused some of the Constitution's supporters. 8 2 This confusion led to<br />
77 "The chief improvement in government, in modern times, has been the compleat<br />
[sic] separation of the great distinctions of power. . . ."Reply to Wilson's Speech: "Centinel"<br />
[Samuel Bryan] 11 (1787), reprinted in 1 DEBATES, supra note 26, at 77, 87.<br />
78 Schoenbrod, supra note 67, at 1278. The Court is not the only check in the<br />
separation scheme, obviously, but it plays a pivotal role.<br />
79 McCulloch v. Maryland, 17 U.S. 316, 410 (1819).<br />
80 Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).<br />
81 1 THE DEBATES, RESOLUTIONS, AND OTHER PROCEEDINGS, IN CONVENTION, ON<br />
THE ADOPTION OF THE FEDERAL CONSTITUTION 6 (Jonathan Elliot ed., Washington 1827).<br />
82 "Can the sovereignty of each state in all its parts exist, if there be a sovereignty<br />
over the whole[?] Is it not nonsense in terms, to suppose an united government of any kind,<br />
over 13 co-existent sovereignties?" Rebuttal to "An Officer of the Late Continental Army":<br />
"Plain Truth", INDEPENDENT GAZETTEER (Philadelphia), Nov. 10, 1787, reprinted in 1<br />
DEBATES, supra note 26, at 105-06. Historian Forrest McDonald has observed, "[The<br />
Founders] introduced an entirely new concept into the discourse, that of federalism, and in<br />
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repeated attacks that the Constitution would destroy the sovereignty of<br />
the states. 83 The Founders, just as repeatedly, denied these claims. "The<br />
proposed Constitution, so far from implying an abolition of the State<br />
Governments, makes them constituent parts of the national sovereignty<br />
by allowing them a direct representation in the Senate, and leaves in<br />
their possession certain exclusive and very important portions of<br />
sovereign power."84<br />
Given the controversy, "[ilt would be in vain to deny the possibility<br />
of a clashing and collision between the measures of the two<br />
governments." 85 Accordingly, Justice O'Connor proclaimed that<br />
"discerning the proper division of authority between the Federal<br />
Government and the States" is a question "as old as the Constitution." 86<br />
This old question arises because the principle of federalism, that<br />
different levels of government possess authority in different areas, is not<br />
textually stated in the Constitution. The reason the Supreme Court<br />
accepts it as a "fundamental principle" is that federalism is fairly easily<br />
implied in the Constitution. 87 The Tenth Amendment all but states the<br />
principle in black and white: "The powers not delegated to the United<br />
States by the Constitution, nor prohibited by it to the States, are<br />
reserved to the States respectively, or to the people." 85 However, recall<br />
that many Founders felt the Bill of Rights originally unnecessary -<br />
particularly in this area. James Madison cited the principle of<br />
enumeration, flowing from a written constitution, as proof of the matter.<br />
"The powers delegated by the proposed Constitution to the Federal<br />
Government are few and defined. Those which are to remain in the State<br />
Governments are numerous and indefinite." 8 9 This fact, a written<br />
constitution, testifies to the existing sovereignty of the states.<br />
the doing, created a novas ordo seclorum: a new order of the ages." Forrest McDonald,<br />
Novus ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE CONSTITUTION, 261 (1985).<br />
83 "[I] repeat, that the proposed constitution must eventually annihilate the<br />
independant [sic] sovereignty of the several states." "The Defect is in the System Itself:<br />
Robert Whitehill on the Dangers of the Powers of Congress and the Illogic of the Habeas<br />
Corpus Clause, reprinted in 1 DEBATES, supra note 26, at 811.<br />
84 THE FEDERALIST No. 9 (Alexander Hamilton), reprinted in 1 DEBATES, supra note<br />
26, at 344. It will be noticed that half of the argument Hamilton gives here for state<br />
sovereignty, i.e., the election of Senators to Congress by state legislatures, no longer exists<br />
because of the Seventeenth Amendment. This structural change will play a part in some<br />
observations later in the paper.<br />
85 Gibbons v. Ogden, 22 U.S. 1, 238 (1824) (Johnson, J., concurring).<br />
86 New York v. United States, 505 U.S. 144, 149 (1992).<br />
87 Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).<br />
88 U.S. CONST. amend. X.<br />
89 THE FEDERALIST No. 45 (James Madison), reprinted in 2 DEBATES, supra note 26,<br />
at 105. Alexander Hamilton expressed a similar sentiment, believing that "the State<br />
Governments would clearly retain all the rights of sovereignty which they before had and<br />
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One statement in the text, however, arguably changes everything:<br />
the Supremacy Clause. 90 Several view this clause as the proverbial<br />
"trump card" in federalism issues. 91 That was certainly the feeling of<br />
many opposed to the proposed Constitution. The dissenters in the<br />
Pennsylvania ratifying convention, listing their reasons for voting in the<br />
negative, stated that:<br />
two co-ordinate sovereignties would be a solecism in politics... one or<br />
the other would necessarily triumph in the fullness of dominion.<br />
However, the contest could not be of long continuance, as the state<br />
governments are divested of every means of defence, and will be<br />
obliged by "the supreme law of the land" to yield at discretion. 92<br />
That threat of Federal dominance, however, remained relatively<br />
benign for about seventy-five years, as the Supreme Court policed the<br />
boundaries between state and federal power with a careful eye. 93 Then<br />
something happened which changed the federal-state structure<br />
dramatically: the Civil War. "[Hlistorical federalism has been repealed<br />
by history. Much of that repeal occurred at the time of the Civil War<br />
when the Thirteenth and Fourteenth Amendments to the Constitution<br />
were passed, conferring broad new powers on the federal government." 9<br />
The Court did not take broad practical notice of this until the 1930s.<br />
Beginning in the 1930s, however, and with accelerating speed after<br />
1937, the Supreme Court began to abandon its textually implied role<br />
of playing jurisdictional policeman in order to take up a new<br />
antitextual role as a nationalist rights-creating body. The structural<br />
constitutionalism of the written text fell by the wayside .... 95<br />
Some believe that this change announced the death of federalism in<br />
America. 9 6 Today's Supreme Court apparently does not agree. Justice<br />
O'Connor referred to our system as one of "dual sovereignty" in an<br />
opinion for the Court in 199197 and quoted at length some very strong<br />
which were not by that act exclusively delegated to the United States." THE FEDERALIST<br />
No. 32 (Alexander Hamilton), reprinted in 1 DEBATES, supra note 26, at 678.<br />
90 "This Constitution, and the Laws of the United States which shall be made in<br />
Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of<br />
the United States, shall be the supreme Law of the Land.. . ." U.S. CONST. art. VI, cl. 2.<br />
91 Dissent of the Minority of the Pennsylvania Convention, PENNSYLVANIA PACKET<br />
(Philadelphia), Dec. 18, 1787, reprinted in 1 DEBATES, supra note 26, at 538.<br />
92 Id.<br />
93 Calabresi, supra note 21, at 1377.<br />
94 Richard Neely, Mother, God, and Federalism, in DERAILING THE CONSTITUTION,<br />
supra note 55, at 89-90; see also Yoo, supra note 46, at 59 n.10.<br />
95 Calabresi, supra note 21, at 1377.<br />
96 Neely, supra note 94, at 90 ("When today's political science professors point out<br />
that the federal government is a government of'delegated' powers, we all chuckle because<br />
by common consent state power has become more a matter of administrative convenience<br />
than an element of sovereignty.").<br />
97 Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).<br />
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states-rights language from an 1869 Supreme Court decision. 98 While<br />
this may indeed represent more lip-service than reality to the federalism<br />
situation today, the Court has backed these strong words with several<br />
federalism-premised decisions. 99 So it seems that federalism's funeral<br />
was premature, and it behooves us to notice why this structural<br />
provision has been so resilient a constitutional player.<br />
The chief danger the Founders sought to guard against was a<br />
concentration of political power. In a republic, this could happen just as<br />
easily through a tyranny of the majority as a tyranny of one branch of<br />
government. One charge against the proposed Constitution, and one of<br />
the known political axioms of the time, was that for a republic to<br />
function, it must be small in geographic size, because the representatives<br />
of the government must be capable of gauging the needs and desires of<br />
the people. 10 0 The larger the sphere being governed, the more difficult<br />
this becomes.<br />
James Madison and the other Founders turned this axiom on its<br />
head, claiming that "the larger the society, provided it lie within a<br />
practicable sphere, the more duly capable it will be of self<br />
government." 10 1 Madison explained that to secure the public good and<br />
private rights from the dangers of factions (i.e. special interests) ruling<br />
in government, it was necessary to<br />
leixtend the sphere, and you take in a greater variety of parties and<br />
interests; you make it less probable that a majority of the whole will<br />
have a common motive to invade the rights of other citizens; or if such<br />
a common motive exits, it will be more difficult for all who feel it to<br />
discover their own strength, and to act in unison with each other. 0 2<br />
98 Id. (quoting Texas v. White, 74 U.S. (7 Wall.) 700, 725 (1868)).<br />
Not only, therefore, can there be no loss of separate and independent<br />
autonomy to the States, through their union under the Constitution, but it<br />
may be not unreasonably said that the preservation of the States, and the<br />
maintenance of their governments, are as much within the design and care<br />
of the Constitution as the preservation of the Union and the maintenance of<br />
the National Government. The Constitution, in all its provisions, looks to<br />
an indestructible Union, composed of indestructible States.<br />
Id.<br />
99 See Printz v. United States, 521 U.S. 898 (1997) (holding that Congress cannot<br />
commandeer state executive officials to carry out federal programs, without the officials'<br />
consents); United States v. Lopez, 514 U.S. 549 (1995) (holding that the "Gun Free School<br />
Zone Act" exceeded congressional authority to regulate interstate commerce); New York v.<br />
United States, 505 U.S. 144 (1992) (holding generally that the Constitution does not<br />
authorize Congress to commandeer state legislatures to legislate for them).<br />
100 THE FEDERALIST No. 51 (James Madison), reprinted in 2 DEBATES, supra note 26,<br />
at 167-68.<br />
101 Id. at 168.<br />
102 THE FEDERALIST No. 10 (James Madison), reprinted in 1 DEBATES, supra note 26,<br />
at 410.<br />
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Moreover, not only does federalism diminish the likelihood of a<br />
tyranny by the people; as Hamilton explained, it also discourages<br />
tyranny by government.<br />
This balance between the national and the state governments ought to<br />
be dwelt on with peculiar attention, as it is of the utmost<br />
importance.-It forms a double security to the people. If one<br />
encroaches on their rights, they will find a powerful protection in the<br />
other.-Indeed they will both be prevented from overpassing their<br />
constitutional limits, by a certain rivalship, which will ever subsist<br />
between them. 103<br />
Federalism thus protects the liberty of the people from their<br />
governments by having two of them, and it protects liberty from factions<br />
of people by extending the sphere that a faction must control before it<br />
becomes potent. This is why Madison believed that in "the extent and<br />
proper structure of the Union, therefore, we behold a Republican remedy<br />
for the diseases most incident to Republican Government." 1o4 The chance<br />
for a successful republic hinges heavily on proper structure.<br />
The Court has invalidated statutes commandeering state officials<br />
because skirting the structure of federalism diminishes the<br />
accountability of Congress and of state officials. "Accountability is thus<br />
diminished when, due to federal coercion, elected state officials cannot<br />
regulate in accordance with the views of the local electorate in matters<br />
not pre-empted by federal regulation." 1 5 Both parties can "pass the<br />
buck:" Congress by having state officials implement unpopular<br />
programs, keeping congressmen "insulated from the electoral<br />
ramifications of their decision;" 10 6 and state officials by blaming Congress<br />
for passage of unpopular legislation. The people thereby have difficulty<br />
holding the responsible party accountable, defeating the purpose of a<br />
republic.1 0 7 A strict adherence to federalism prevents this occurrence.<br />
"American federalism in the end is not a trivial matter or a quaint<br />
historical anachronism. American-style federalism is a thriving and vital<br />
institutional arrangement." 10 8 As the Supreme Court has explained,<br />
103 Melancton Smith and Alexander Hamilton Debate Representation, Aristocracy,<br />
and Interests (1788), reprinted in 2 DEBATES, supra note 26, at 772.<br />
104 THE FEDERALIST No. 10 (James Madison), reprinted in 1 DEBATES, supra note 26,<br />
at 411.<br />
105 New York v. United States, 505 U.S. 144, 169 (1992).<br />
Id.<br />
106 Id.<br />
107 See United States v. Lopez, 514 U.S. 549, 576-77 (1995).<br />
If, as Madison expected, the Federal and State Governments are to control<br />
each other ... and hold each other in check by competing for the affections<br />
of the people ... those citizens must have some means of knowing which of<br />
the two governments to hold accountable for the failure to perform a given<br />
function.<br />
108 Calabresi, supra note 5, at 770.<br />
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[Federalism] assures a decentralized government that will be more<br />
sensitive to the diverse needs of a heterogeneous society; it increases<br />
opportunity for citizen involvement in democratic process; it allows for<br />
more innovation and experimentation in government; and it makes<br />
government more responsive by putting the States in competition for a<br />
mobile citizenry. 10 9<br />
Most importantly, as the Founders emphasized, federalism serves as a<br />
check on the abuse of government power, helping achieve the<br />
Constitution's main goal. 110<br />
The only question remaining is who polices the boundaries between<br />
the federal and state governments? The necessity of a policeman seems<br />
obvious. "If this 'double security' [of federalism] is to be effective, there<br />
must be a proper balance between the States and the Federal<br />
Government. These twin powers will act as mutual restraints only if<br />
both are credible. In the tension between federal and state power lies the<br />
promise of liberty.""' Once again the first principles discussed in Part A<br />
come into play. Since our written Constitution implies the federalist<br />
system, and because a State or Federal legislative branch deciding who<br />
controls what violates the rule that no man should be a judge in his own<br />
case, an impartial arbiter is needed to canvass the structure of the Great<br />
Text and decide these issues. If Congress called the shots, it would<br />
clearly be able to all but destroy the states, given the existence of the<br />
Supremacy Clause. If the State legislatures called the shots, the Federal<br />
government would become impotent, as was the case under the Articles<br />
of Confederation.<br />
The impartiality of the judiciary again plays a vital role. Some<br />
believe that federal courts will not be impartial in reality, because when<br />
they expand Congress' power, they expand their own. 112 The force of this<br />
argument is difficult to deny. However, "When we talk about the<br />
institutional competence of either the Court or Congress [or any body for<br />
that matter], we must remember that we are talking about an 'as<br />
compared to what' question .... A perfect, reliable institutional actor<br />
does not exist." 113 Congress is the institution best suited to policy-making<br />
109 Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).<br />
110 Id.<br />
S11 Id. at 459.<br />
112 Brutus, an arch Anti-Federalist, predicted as much:<br />
Every body of men invested with office are tenacious of power.., the same<br />
principle will influence them [the judiciary] to extend their power, and<br />
increase their rights; this of it itself will operate strongly upon the courts to<br />
give such a meaning to the constitution in all cases where it can possibly be<br />
done, as will enlarge the sphere of their own authority."<br />
Brutus X/, N.Y. J., Jan. 31, 1788, reprinted in 2 DEBATES, supra note 26, at 129,<br />
134.<br />
113 Lillian R. BeVier, Religion in Congress and the Courts: Issues of Institutional<br />
Competence, 22 HARV. J.L. & PUB. POL'Y 59, 62-63 (1998).<br />
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because it takes the widest range of views into consideration, it can act<br />
prophylactically, and it allows for broad public debate. It is not the<br />
perfect institution of law-making, but it is the best our experience has<br />
enabled us to produce. The same argument applies to the judiciary in<br />
deciding federalism questions. An impartial actor familiar with the<br />
system of the Founders is necessary to make these decisions. Is the<br />
Court ideally impartial for the task? It probably is not, but it is the best<br />
institutional actor we have for the task. It only makes sense that<br />
"continuing vigilance of the courts in protecting states' rights is of<br />
critical importance if the state-federal balance of power so necessary to<br />
the preservation of our liberty is to be maintained." n4<br />
C. Separation of Powers and Federalism: A Seamless Web<br />
Examined individually, separation of powers and federalism are<br />
both important concepts in our constitutional scheme. Yet, we only<br />
studied them in this manner for ease of examination. In reality, the two<br />
are anything but separate. "[The Framers] used the principles of<br />
separation of powers and federalism to secure liberty in the fundamental<br />
political sense of the term, quite in addition to the idea of freedom from<br />
intrusive governmental acts." 115 In fact, federalism can be seen as part of<br />
the system of separation of powers because it separates power vertically,<br />
where division of power among the branches separates it horizontally. As<br />
Madison himself indicates,<br />
In the compound republic of America, the power surrendered by the<br />
people, is first divided between two distinct governments, and then the<br />
portion allotted to each, subdivided among distinct and separate<br />
departments. Hence a double security arises to the rights of the<br />
people. The different governments will controul each other; at the<br />
same time that each will be controuled by itself. 116<br />
Sometimes, when faced with attacks on their model of federalism,<br />
the Founders responded by pointing to the separation of powers as an<br />
additional bulwark for preserving federalism.11 7 In New York v. United<br />
States, 11 8 a federalism case, the Court cites two separation of powers<br />
114 John C. Yoo, <strong>Judicial</strong> Review and Federalism, 22 HARV. J.L. & PUB. POLY 197<br />
(1998). When I say "courts," in this case I refer to those both at the state and federal levels.<br />
Both exist to protect rights, thus both also exist to secure structure.<br />
115 Clinton v. City of New York, 524 U.S. 417, 452 (1998) (Kennedy, J., concurring).<br />
116 THE FEDERALIST No. 51 (James Madison), in 2 DEBATES, supra note 26, at 166.<br />
The reader will note the stark similarity between this point and the one made by Hamilton<br />
found in the text at note 104. The repetition is no accident, because the scheme of<br />
government was no accident. Creating "double securities" for the people against tyranny<br />
from any quadrant constantly consumed the designs of the Founders.<br />
117 Yoo, supra note 46, at 1384-85.<br />
118 New York v. United States, 505 U.S. 144 (1992).<br />
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cases, Buckley v. Valeo" 1 9 and INS v. Chadha, 120 to make its point<br />
concerning the consent of state officials to congressional actions. "The<br />
constitutional authority of Congress cannot be expanded by the 'consent'<br />
of the governmental unit whose domain is thereby narrowed, whether<br />
that unit is the Executive Branch or the States." 121 All of this<br />
demonstrates that federalism and separation of powers are inextricably<br />
linked together. "Just as the separation and independence of the<br />
coordinate branches of the Federal Government serve to prevent the<br />
accumulation of excessive power in any one branch, a healthy balance of<br />
power between the States and the Federal Government will reduce the<br />
risk of tyranny and abuse from either front." 122 A dedication to one<br />
requires dedication to the other, and more important for our purposes,<br />
judicial cognizance of one demands that both be upheld to insure that<br />
the Constitution's framework is implemented in an accurate and<br />
responsible fashion.<br />
III. JUDICIAL REVIEW AND THE STRUCTURAL CONSTITUTION<br />
So far, we have looked at the immense importance of the<br />
Constitution's structures for the proper working of government and<br />
protection of the people. For this article's purpose, that is only half the<br />
story. <strong>Judicial</strong> review, the greatest countermajoritarian structure in the<br />
whole constitutional scheme must be examined in detail to see when its<br />
exercise is justified. The dogmatic Anti-Federalist, Brutus, describing<br />
the Supreme Court, said:<br />
It is, moreover, of great importance, to examine with care the nature<br />
and extent of the judicial power, because those who are to be vested<br />
with it, are to be placed in a situation altogether unprecedented in a<br />
free country. They are to be rendered totally independent, both of the<br />
people and the legislature, both with respect to their offices and their<br />
salaries. No errors they commit can be corrected by any power above<br />
them, if any such power there be, nor can they be removed from office<br />
for making ever so many erroneous adjudications. 123<br />
Brutus may be guilty of some hyperbole, but makes a sound point:<br />
no other judicial body in the world had the power that is invested in the<br />
Supreme Court through the Constitution. Once again, the Founders<br />
turned political theory on its head; the common wisdom was that the<br />
people always knew best and ought not be questioned. The Founders<br />
119 Buckley v. Valeo, 424 U.S. 1 (1976).<br />
120 INS v. Chadha, 462 U.S. 919 (1983).<br />
121 New York, 505 U.S. at 182.<br />
122 Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).<br />
123 "Brutus"XI, N.Y. J., Jan. 31, 1788, reprinted in 2 DEBATES, supra note 26, at 129,<br />
129. We shall visit with Brutus a few more times before the end of this section because his<br />
observations prove telling, even if exaggerated.<br />
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agreed with this to a great extent, but not in its entirety. They believed<br />
that certain principles of the government needed firmer grounding than<br />
a simple reliance on the passions of the people. This belief sprang from<br />
the principle discussed in Section II, Part A, that people were fallible and<br />
often succumbed to their darker passions. The Founders maintained that<br />
"it is the reason of the public alone that ought to controul and regulate<br />
the government. The passions ought to be controuled and regulated by<br />
the government." 124<br />
This was one reason for a written constitution that was difficult to<br />
amend: people's darker passions must be kept from changing the<br />
Constitution each time something excited them. Our written<br />
Constitution intentionally placed certain principles beyond the ordinary<br />
reach of the people. After all, the point of a written constitution is<br />
diminished, if not obliterated, if it is constantly changed. 125 The<br />
Constitution was not intended to be entirely democratic. 126 Controlling<br />
the public's passions was also a reason behind creating an independent<br />
judicial branch with appointments that last during good behavior and<br />
untouchable salaries for the judges. The Founders wanted a branch that<br />
would handle constitutional questions in a dispassionate and reasoned<br />
way, one that would not be afraid of challenging the will of the people<br />
when extraordinary circumstances called for it. The Articles of<br />
Confederation did not provide for a judicial branch, so no venue existed<br />
to settle federal questions. No constitutional challenge to legislation<br />
could be made at the federal level. The Founders attempted to remedy<br />
these things through the creation of a body with an unprecedented<br />
power: judicial review.<br />
There is doubt, but not an immense amount of it, that the Founders<br />
intended judicial review to exist. Alexander Hamilton observes in<br />
Federalist 78, "[ln a government in which [the different departmentsl<br />
are separated from each other, the judiciary, from the nature of its<br />
functions will always be the least dangerous to the political rights of the<br />
constitution; because it will be least in a capacity to annoy or injure<br />
them."'1 27 People may chuckle when they read this, assuming that<br />
Hamilton must not have taken into account, or conceived of, the power of<br />
judicial review when he wrote this now famous text. The facts are the<br />
opposite. In the same paper, Hamilton expressed the first rationale for<br />
124 THE FEDERALIST No. 49 (James Madison), reprinted in 2 DEBATES, supra note 26,<br />
at 146.<br />
125 Just look at France, with its experience of the Revolution of 1789 and the ensuing<br />
Terror of 1793-1794.<br />
126 J. Clifford Wallace, The Jurisprudence of <strong>Judicial</strong> Restraint: A Return to the<br />
Moorings, 50 GEO. WASH. L. REV. 1, 2 (1981).<br />
127 THE FEDERALIST, No. 78 (Alexander Hamilton), reprinted in 2 DEBATES, supra<br />
note 26, at 468.<br />
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judicial review, one that John Marshall would copy later in his Marbury<br />
v. Madison 128 opinion.<br />
The complete independence of the courts of justice is peculiarly<br />
essential in a limited constitution .... Limitations of this kind can be<br />
preserved in practice no other way than through the medium of the<br />
courts of justice; whose duty it must be to declare all acts contrary to<br />
the manifest tenor of the constitution void. 1 29<br />
The argument for judicial review given here is purely structural:<br />
judicial review exists because of the fact of a written constitution and the<br />
need to keep a limited government within its proscribed boundaries.<br />
Hamilton carries the structural importance of the judiciary even further.<br />
"[Tihe courts," Hamilton says, "were designed to be an intermediate body<br />
between the people and the legislature, in order, among other things, to<br />
keep the latter within the limits assigned to their authority." 130 Hamilton<br />
was not the only Founder to explicitly argue for judicial review, 131 and<br />
each made the appeal on structural and institutional grounds, taking<br />
care to emphasize the independence of the judiciary.<br />
Brutus also predicted the existence of judicial review, but, unlike<br />
his adversaries, he did not look upon the innovation as a cause for<br />
celebration. He charged that<br />
in their decisions [the Supreme Court] will not confine themselves to<br />
any fixed or established rules, but will determine, according to what<br />
appears to them, the reason and spirit of the constitution .... This<br />
128 Marbury v. Madison, 5 U.S. 137 (1803).<br />
129 THE FEDERALIST No. 78 (James Madison), reprinted in 2 DEBATES, supra note 26,<br />
at 469.<br />
130 Id. at 470.<br />
131 James Wilson, second only to Madison in influence on the crafting of the<br />
Constitution, and later a justice of the Supreme Court, remarked in the Pennsylvania<br />
ratifying convention that "when [congressional legislation] comes to be discussed, before<br />
the judges-when they consider its principles, and find it to be incompatible with the<br />
superior power of the constitution, it is their duty to pronounce it void." James Wilson<br />
Replies to Findley (1787), reprinted in 1 DEBATES, supra note 26, at 820, 823.<br />
Oliver Ellsworth, a staunch Federalist and later Chief Justice of the Supreme Court<br />
for four years, described his view of the courts under the proposed constitution in the<br />
Connecticut ratifying convention:<br />
This constitution defines the extent of the powers of the general<br />
government. If the general legislature should at any time overleap their<br />
limits, the judicial department is a constitutional check. If the United<br />
States go beyond their powers, if they make a law which the constitution<br />
does not authorise, it is void; and the judicial power, the national judges,<br />
who to secure their impartiality are made independent, will declare it void.<br />
Oliver Ellsworth Defends the Taxing Power and Comments on Dual Sovereignties and<br />
<strong>Judicial</strong> Review (1788), reprinted in 1 DEBATES, supra note 26, at 887, 883; see also,<br />
"Americanus" [John Stevens, Jr.] VII, DAILY ADVERTISER (N.Y.), (Jan. 21, 1788), reprinted<br />
in 2 DEBATES, supra note 26, at 60.<br />
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power in the judicial, will enable them to mould the government, into<br />
almost any shape they please. 132<br />
Though some may think that this is exactly what happened, and<br />
there is ample cause to think as such, it is not what the Founders<br />
intended. "In its inception, judicial review was a limited and legalistic<br />
concept, a product of logic designed to serve a carefully defined<br />
purpose." 133 The "legalistic concept" was for the Court to serve as one of<br />
the checks on the other branches powers. As Hamilton responded to the<br />
charge,<br />
The courts must declare the sense of the law; and if they should be<br />
disposed to exercise WILL instead of JUDGMENT, the consequences<br />
would equally be the substitution of their pleasure to that of the<br />
legislative body. The observation, if it proved any thing, would prove<br />
that there ought be no judges distinct from that body [Congress]. 134<br />
Forming a government without a judiciary had already been tried<br />
under the Articles of Confederation, an abysmal failure, and so the<br />
Founders (and even more importantly the People, who ratified the<br />
Constitution) were not about to make the same mistake twice. Hamilton<br />
and other supporters of the Constitution truly believed that the judiciary<br />
would possess "neither Force nor Will, but merely judgment; and must<br />
ultimately depend on the aid of the executive arm even for the efficacy of<br />
its judgments." 135 In other words, the powers vested in the judiciary were<br />
the least susceptible to despotism, because the courts could do little or<br />
nothing without the acquiescence of at least one of the other two<br />
branches to carry out their decisions.<br />
Regardless of what the Founders intended, because of the absence of<br />
an explicit rendering in the text and its ostensible operation as an antidemocratic<br />
device, judicial review is "a deviant institution in the<br />
American democracy." 136 <strong>Judicial</strong> review is not celebrated (outside<br />
132 "Brutus" XI, N.Y. J. (Jan. 31, 1788), reprinted in 2 DEBATES, supra note 26, at<br />
129, 132, 135.<br />
133 EATON, supra note 9, at 13.<br />
134 THE FEDERALIST No. 78 (James Madison), reprinted in 2 DEBATES, supra note 26,<br />
at 471.<br />
135 Id. at 468. Hamilton's point is buttressed by the findings of Forrest McDonald,<br />
who writes:<br />
The delegates devoted less time to forming the judiciary-and less<br />
attention to careful craftsmanship-than they had expended on the<br />
legislative and executive branches. In part the judiciary received minimal<br />
consideration because it was regarded as the least powerful and least active<br />
branch of government. In part, too . . . the delegates were in general<br />
agreement as to the principles that should be embodied in forming it.<br />
MCDONALD, supra note 82, at 253.<br />
136 ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT<br />
AT THE BAR OF POLITICS 18 (1962). It should be noted that not everyone agrees that the<br />
Court, properly understood, is a countermajoritarian device. It can be argued that when<br />
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narrow legal circles) for its wonderful contributions to the American<br />
political system. "The root difficulty is that judicial review is a countermajoritarian<br />
force in our system." 137 This observation by the late<br />
Professor Alexander Bickel is the chief criticism of judicial review in<br />
general and judicial activism in particular. The "counter-majoritarian<br />
difficulty" 138 is that, in general, decisions in our society are supposed to<br />
be made by the elective branches of our government. When a judge<br />
declares an act of Congress or the President void, he short-circuits the<br />
democratic process, and at the Supreme Court level, places the issue out<br />
of the reach of ordinary debate. 139 This practice can damage the very<br />
system it is designed to maintain, namely rule by the People through a<br />
government of laws. 140 Judge Bork presents the problem in a slightly<br />
different way:<br />
The central problem for constitutional courts is the resolution of<br />
the "Madisonian Dilemma." The United States was founded as a<br />
Madisonian system, which means that it contains two opposing<br />
principles that must be continually reconciled. The first principle is<br />
self-government, which means that in wide areas of life majorities are<br />
entitled to rule, if they wish, simply because they are majorities. The<br />
second is that there are nonetheless some things majorities must not<br />
do to minorities, some areas of life in which the individual must be<br />
free of majority rule. The dilemma is that neither majorities nor<br />
minorities can be trusted to define the proper spheres of democratic<br />
authority and individual liberty. To place that power in one or the<br />
other would risk either tyranny by the majority or tyranny by the<br />
minority.' 4 '<br />
the Court strikes down a law as void against the Constitution, it is simply finding in favor<br />
of the supermajority that approves of the Constitution.<br />
137 Id. at 16.<br />
138 Id.<br />
139 Overturning a decision by the Supreme Court requires either an Amendment to<br />
the Constitution or a changing of the guard on the Bench, neither of which happens easily<br />
or often.<br />
140 The great constitutional scholar James Bradley Thayer puts it thus:<br />
It should be remembered that the exercise of [the power ofjudicial review],<br />
even when unavoidable, is always attended with a serious evil, namely that<br />
the correction of legislative mistakes comes from the outside, and the<br />
people lose the political experience, and the moral education and stimulus<br />
that comes from fighting the question out in the ordinary way, and<br />
correcting their own errors. The tendency of a common and easy resort to<br />
this great function.., is to dwarf the political capacity of the people, and to<br />
deaden its sense of moral responsibility.<br />
THAYER, JOHN MARSHALL 106-07 (1920).<br />
141 ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE<br />
LAW 139 (1990).<br />
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Bork's analysis leaves something to be desired, 142 but the major<br />
point survives: how do we adhere to rule by the People while<br />
maintaining the supremacy of the law of the Constitution? Maintaining<br />
constitutional supremacy is, after all, the chief purpose of judicial<br />
review; the government must be kept within its constituted bounds to<br />
insure that the system works properly and that the people's rights are<br />
protected.<br />
This dilemma/difficulty is chiefly solved through structural judicial<br />
activism. 143 This type of activism promotes majorities, judicial selfrestraint,<br />
and fidelity to the Constitution. The way that structural<br />
activism promotes majorities is simply through the design of the system.<br />
In federalism cases, such a judiciary chooses which majority should<br />
govern as between national majorities and state majorities .... In<br />
separation of powers cases, the federal judiciary chooses which<br />
majority should govern as between the national majority which elects<br />
the President every four years through the medium of the Electoral<br />
College and the very different national majority which selects the<br />
Congress over a six year cycle in races that go on district by district<br />
and state by state. 144<br />
In essence, where structural cases are concerned, the countermajoritarian<br />
difficulty is mitigated, if not completely resolved, because<br />
the judiciary is not choosing between a majority and a minority per se. It<br />
is choosing between two different types of majorities within our system.<br />
Both state majorities and national majorities exist in our federalist<br />
system; likewise, congressional majorities and presidential majorities<br />
exist in our separation of powers scheme. 145 Choosing one or the other is<br />
not an intolerable subversion of our system; it is precisely the way the<br />
system was intended to work, provided the Court's decision is based<br />
upon fidelity to the Constitution. Thus, structural activism singularly<br />
limits problems arising from the counter-majoritarian difficulty.<br />
Structural activism also promotes judicial self-restraint. <strong>Judicial</strong><br />
restraint means that to avoid "usurping the policymaking role of the<br />
democratically elected bodies and officials, a judge should always be<br />
142 Bork overemphasizes both the influence of Madison in creating the system and<br />
the amount of tension that actually exists in our system. Moreover, the reason we do not<br />
allow majorities to decide everything is not simply because of a fear of tyranny of the<br />
minority or majority. It is also because the nature of humanity is such that the people may<br />
not always be vigilant in protecting their freedoms. Thus, some structures are necessary to<br />
supplement the people's vigilance; this protection is part of the system as well. For a telling<br />
but not wholly accurate critique of Bork, see Jaffa, supra note 2, at 291.<br />
143 It will never fully be solved: that is the nature of the imperfect institutions we<br />
must live with; see supra note 113 and surrounding text.<br />
144 Calabresi, supra note 21, at 1383.<br />
145 This explains why we end up with "split tickets" many times at the national<br />
level, with Congress being held by one political party, and the other party holding the<br />
Presidency.<br />
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hesitant to declare statues or governmental actions unconstitutional." 146<br />
Restraint is a beneficial trait in our judicial system because it "preserves<br />
fundamental constitutional precepts. It encourages the separation of<br />
powers, protects our democratic processes, and preserves our<br />
fundamental rights." 147 It does these things by keeping judicial hands out<br />
of the "cookie jar" of policymaking. Courts are ill-equipped to make policy<br />
for several reasons, ranging from a lack of necessary information to an<br />
inability to change its decisions in a timely fashion. 148 More pointedly,<br />
the Founders already argued about whether the Supreme Court should<br />
have a role in policymaking. At the Convention, some proposed a<br />
"Council of Revision" for legislative purposes, which would have<br />
consisted of the President, some of his Cabinet, and the Supreme Court,<br />
reviewing congressional legislation on policy grounds. The idea was<br />
rejected soundly. 149 The system kept policymaking out of the courts'<br />
hands. Given these things, the courts need to practice judicial restraint<br />
much of the time - the system assumes as much through the separation<br />
of powers, as the statements of Hamilton and others indicate. 150<br />
Self-restraint is the only real check on the judiciary, given its<br />
independent nature. 151 As the twelfth Chief Justice of the Supreme<br />
Court, Harlan Fiske Stone said, "While the unconstitutional exercise of<br />
power by the executive and legislative branches of the government is<br />
subject to judicial restraint, 152 the only check upon our own exercise of<br />
power is our own sense of self-restraint." 153 Since this is the case, and<br />
given the precarious role judicial review holds in our system, it makes<br />
sense that an active judiciary should have a proper place only on rare<br />
occasions. When the Court acts on structural bases, it is practicing<br />
restraint in the sense that it is not imputing its own preferences over<br />
those of the People; rather it is placing constitutional constraints over<br />
the preferences of the particular majoritarian institution that committed<br />
the voided act.<br />
146 Wallace, supra note 127, at 8.<br />
147 Id. at 16.<br />
148 Id. at 6. These are some of the very reasons that Congress is responsible for<br />
policymaking in the first place. See also, Edwin Meese III, Putting the Federal Judiciary<br />
Back on the Constitutional Track, 14 GA. ST. U. L. REV. 781, 784 (1998).<br />
149 MCDONALD, supra note 82, at 242.<br />
150 Wallace, supra note 127, at 8 ("The constitutional trade-off for independence is<br />
that judges must restrain themselves from the areas reserved to the otherf separate<br />
branches.").<br />
151 Senator Charles E. Grassley, Foreword to EATON, supra note 9, at xiv. It is true<br />
that judges can be impeached, but this occurs so little as to be almost no check at all. There<br />
are also the structural checks of the "case and controversy" and standing requirements, but<br />
history has shown that these can be easily manipulated by judges with little self-restraint.<br />
152 And electoral restraint.<br />
153 United States v. Butler, 297 U.S. 1, 78-79 (1936) (Stone, J., dissenting).<br />
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This is not a conventional way of looking at restraint versus<br />
activism. Judge Justice' 54 provides the traditional view of the legal<br />
establishment: "Proponents of judicial self-restraint can also be defined<br />
in contrast to those jurists and scholars who view the court as the<br />
legitimate counter-majoritarian force in our democracy." 15 Judge<br />
Justice's view is precisely the kind of categorization I wish to refute.<br />
Believing that judicial review (of a certain kind) and self-restraint are at<br />
odds is an incorrect juxtaposition. A judge who believes in structural<br />
judicial activism still follows the standards of proper statutory<br />
interpretation. The structural activist "respects the process of democratic<br />
decisionmaking embodied in legislative enactments," 156 takes care not to<br />
embroil himself "unnecessarily in the turbulent waters of political<br />
controversy," 157 and practices what Charles Lamb calls the "maxims of<br />
restraint." 158 The structural activist does these things because, above all,<br />
the judge respects the principles upon which the Constitution is founded<br />
and the People for whom he adjudicates. For structural activists, several<br />
laws that they consider unwise or downright stupid will nonetheless be<br />
upheld as constitutional. 5 9 "We begin, of course, with the presumption<br />
that the challenged statute is valid. Its wisdom is not the concern of the<br />
courts; if a challenged action does not violate the Constitution, it must be<br />
sustained." 160 The concern is not the substantive wisdom of the<br />
legislation, but the structural impact of its provisions.<br />
Ultimately, the main concern of judicial activism should be fidelity<br />
to the Constitution, because judicial review is a legal tool so fraught with<br />
dangers in our tradition that it ought to be used in only the most<br />
justifiable, least dangerous way. "The process is justified only if it is as<br />
deliberate and conscious as men can make it."161 Structural activism is<br />
preferable because it comports best with the text and history of the<br />
Constitution. It is the least dangerous because it simply rules in favor of<br />
one majority over another, thus lessening the criticism of judicial<br />
review's counter-majoritarian nature. More importantly, structural<br />
activism finds its decisions in the foundation of the Constitution, rather<br />
154 See supra notes 16 and 17 and accompanying text.<br />
155 William Wayne Justice, The New Awakening: <strong>Judicial</strong> Activism in a Conservative<br />
Age, 43 Sw. L.J. 657, 671 (1989).<br />
156 Anderson, supra note 3, at 1561.<br />
157 ARCHIBALD Cox, THE ROLE OF THE SUPREME COURT IN AMERICAN GOVERNMENT<br />
28(1976).<br />
158 Anderson, supra note 3, at 1560.<br />
159 Baker v. Carr, 369 U.S. 186, 270 (1962) (Frankfurter, J., dissenting) ("[Tihere is<br />
not under our Constitution a judicial remedy for every political mischief, for every<br />
undesirable exercise of legislative power. The Framers carefully and with deliberate<br />
forethought refused to so enthrone the judiciary.").<br />
160 INS v. Chadha, 462 U.S. 919, 944 (1983).<br />
161 BICKEL, supra note 137, at 96.<br />
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than the ideas of the judge. With the practice of improper judicial<br />
activism, the Constitution becomes "an authoritative occasion for, rather<br />
than a norm of, judicial interpretation." 162 Proper judicial activism aims<br />
for the latter course. It recognizes that "the Constitution is form; an<br />
appeal to 'function' is a claim that something else would be better than<br />
the Constitution, which may be true but nevertheless isn't an admissible<br />
argument about interpretation of the structure we have." 163 This<br />
formalism makes structural activism more conducive to drawing bright<br />
lines.<br />
There are three general arguments for judicial activism: (a)<br />
personal preferences; (b) natural or higher law; and (c) the nature of the<br />
regime (also known as the argument from democracy or republic). As we<br />
have seen, some judges, such as William Justice or Skelly Wright believe<br />
in the first justification, one that this article rejects as improper judicial<br />
activism. The second finds its grounding in "a belief in natural law," a<br />
sense judges have been appealing to ever since Calder v. Bull. 1 6 The<br />
third argument rests its force on the Constitution itself, on the concept<br />
that "American democracy is not simply majority rule; rather, it is a<br />
constitutional democracy. The majority rules within the bounds of the<br />
Constitution, and the limits of the Constitution only have meaning if<br />
there is somebody there to enforce those limits." 165 The difficulty among<br />
these arguments arises when attempting to tell the difference between<br />
when a judge is relying on personal preferences, which is not justified,<br />
and when he is relying on natural or higher law, which is more justified.<br />
The line is so precarious as to be almost indiscernible. 166 Given this<br />
tendency of judicial review, the only safe course is the one that is clearly<br />
the most justified: the argument from structure. Since judicial review<br />
carries with it this inherent problem, it makes sense to concentrate on<br />
the cases that present the proper role of the judiciary as jurisdictional<br />
policemen.<br />
The sense of structural judicial activism rests, as I have said, on the<br />
precarious nature of judicial review as a legal device. Thus, the power of<br />
the Court is premised on the legitimacy of judicial review. "Lacking<br />
power of the purse or the sword, the Court must rely upon the power of<br />
legitimacy - upon the capacity to evoke uncoerced assent and strong<br />
162 Russell Hittinger, A Crisis of Legitimacy, in THE END OF DEMOCRACY? THE<br />
JUDICIAL USURPATION OF POLITICS 18 (1997).<br />
163 Easterbrook, supra note 23, at 15.<br />
164 Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798).<br />
165 Chemerinsky, supra note 8, at 30.<br />
166 Justice Iredell observed in Calder, "The ideas of natural justice are regulated by<br />
no fixed standard: the ablest and the purest men have differed upon the subject..." Calder<br />
v. Bull, 3 U.S. at 399.<br />
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public support." 167 Such is the reason that appeals to natural law have<br />
been so prevalent by the Court over the years: it speaks to the hearts of<br />
the public. The sense of public support is bred by the belief that the<br />
Court's decisions are made based upon the law, something about which<br />
the judges presumably have special insight, as opposed to being based on<br />
simple policy preferences, on which judges possess no more expertise<br />
than the proverbial man on the street.<br />
In order to acquiesce in court decisions, and to comply with their<br />
requirements, the people must believe that the court system, and the<br />
Supreme Court especially, is governed by a rule of law, not a rule of<br />
men. We must believe that the judicial system insulates us from the<br />
whims of individual judges, from the prejudices, and from their areas<br />
of ignorance. 1 68<br />
Here the rule of law blends with the separation of powers. Courts<br />
are designed to be insulated from politics to a great degree because their<br />
decisions should be concretely grounded in the law. The other branches<br />
handle the politics; the judiciary interprets the law. l69 If it were<br />
otherwise, the warning by President Lincoln in his First Inaugural<br />
Address could come to fruition:<br />
[T]he candid citizen must confess that if the policy of the Government<br />
upon vital questions affecting the whole people is to be irrevocably<br />
fixed by decisions of the Supreme Court . . .the people will have<br />
ceased to be their own rulers, having to that extent practically<br />
resigned their government into the hands of that eminent tribunal. 1 70<br />
The People must respect judicial decisions to obey them. That<br />
respect and legitimacy come most readily when decisions are grounded<br />
in the founding document of our Government: the Constitution. Such is<br />
why nearly every opinion written in Supreme Court history dealing with<br />
a constitutional issue pays at least face-value homage to the<br />
Constitution, with each justice claiming that his or her opinion comports<br />
best with the sense of the document. "The Court is most vulnerable and<br />
comes nearest to illegitimacy when it deals with judge-made<br />
constitutional law having little or no cognizable roots in the language or<br />
design of the Constitution." 7 ' To preserve its power and legitimacy, the<br />
Court ought to focus mainly on structure, where judicial activism is<br />
167 Cox, supra note 15, at 122. See also Baker v. Carr, 369 U.S. 186, 267 (1962)<br />
(Frankfurter, J., dissenting) ("The Court's authority-possessed of neither the purse nor<br />
the sword-ultimately rests on sustained public confidence in its moral sanction.").<br />
168 EATON, supra note 9, at 7.<br />
169 This is not, of course, to say that legal decisions have no political ramifications;<br />
they clearly do. It simply means that so far as possible, the politics of the situation should<br />
be separated from the legal question before the court.<br />
170 Abraham Lincoln, First Inaugural Address (Mar. 4 1861), in INAUGURAL<br />
ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES: FROM GEORGE WASHINGTON 1789<br />
TO GEORGE BUSH 1989 at 133 (U.S. G.P.O. 1989).<br />
171 Bowers v. Hardwick, 478 U.S. 186, 194 (1986).<br />
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concerned. The Court gains its power of judicial review from the design<br />
of the Constitution and as such should not practice that tool of last resort<br />
outside of its confines. The system's preferences for majorities, the<br />
separation of powers, judicial restraint, and the rule of law all point to<br />
practicing activism in one main way: as a jurisdictional policeman<br />
patrolling the structural boundaries of the Constitution.<br />
IV. THE CRITICS RESPOND AND ARE REJOINED<br />
Alternatives to the approach advocated in this paper vary in degree<br />
of difference and span the ideological spectrum. Perhaps the starkest<br />
contrast comes from the "political safeguards" theory of federalism. First<br />
argued by Professor Herbert Wechsler 172 in the 1950s and given its<br />
strongest voice by Professor Jesse Choper 173 in the 1980s, it argues that<br />
"the states do not need judicial protection from expansive federal<br />
legislation, because their role in the makeup and the operation of the<br />
national government provides them with sufficient means to protect<br />
their rights." 1 74 Wechsler and Choper's main reason for making this<br />
argument is that they believe the Court should "conserve judicial<br />
legitimacy for what really counts: the protection of individual rights."l?5<br />
Choper in particular argues that the Court possesses only limited<br />
authoritative capital, and that capital ought to be spent adjudicating<br />
individual rights cases. The position assumes that states are adequately<br />
represented in the national political process, so "any exercise of power by<br />
the federal government at the expense of the states therefore was ipso<br />
facto constitutional because the states . . . had given their political<br />
assent."1 76 The theory found its Supreme Court voice in Garcia v. San<br />
Antonio Metropolitan Transit Authority. 77 Additionally, although its<br />
main focus is federalism, the "political safeguards" theory includes also<br />
the "separation proposal," which holds that all questions involving<br />
allocations of power between Congress and the President ought to be<br />
172 Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States<br />
in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543<br />
(1954).<br />
173 JESSE CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A<br />
FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME COURT (1980).<br />
174 Yoo, supra note 46, at 1312. Along essentially the same lines is Professor Herbert<br />
Hovenkamp's recent assertion that "history has made abundantly clear that the political<br />
process is quite effective at reducing federal assertions of power in favor of state<br />
prerogatives." Herbert Hovenkamp, <strong>Judicial</strong> Restraint and Constitutional Federalism: The<br />
Supreme Court's Lopez and Seminole Tribe Decisions, 96 COLUM. L. REV. 2213, 2221<br />
(1996).<br />
175 Yoo, supra note 46, at 1319.<br />
176 Id. at 1325.<br />
177 Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), overruled in<br />
part by United States v. Lopez, 514 U.S. 549 (1995).<br />
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non-justiciable "because of the political branches' abilities to use other<br />
tools at their disposal to resolve their differences." 178<br />
In essence, Choper's theory represents an approximately opposite<br />
view to the one presented here. Choper believes individual rights cases<br />
to be the most important on the Court's docket and thus they should<br />
receive its full attention. Federalism and separation of powers issues<br />
basically take care of themselves and so do not necessitate the Court's<br />
intervention. This theory seems reasonable, but it abounds with<br />
problems. Even assuming arguendo that political safeguards were<br />
adequate protection for the states when Weschler first proposed his<br />
theory, the situation has altered dramatically since then. Cloture is now<br />
available in the Senate by a three-fifths vote on most matters, rather<br />
than two-thirds. Rural districts are no longer "over-represented" in the<br />
House of Representatives because of the one person, one vote rule.<br />
Redistricting now is done just as much by the courts as it is by the state<br />
legislatures. Television has nationalized Senate elections. Federal grants<br />
for highways and other programs are used by Congress as carrots to pass<br />
national laws on drinking, seat belts, speeding, and so forth. 79 Even<br />
reaching back before the 1950s the state/federal equation had swung<br />
decisively over to the federal side. The state legislatures no longer select<br />
Senate members; instead, the people elect them by popular vote,<br />
eliminating what the Founders' believed to be the most important<br />
representative protection of the states in the federal government. 180 The<br />
New Deal nationalized farm relief, retirement, and poverty programs.' 8 '<br />
All of these factors add up to the conclusion that "[bloth analytically and<br />
impressionistically, the Wechsler-Choper view seems at least a little odd<br />
in the political world of today - an historical anomaly that no longer<br />
quite seems to fit."182<br />
Looking past the national level to the states, the Choper theory fails<br />
to account for the possibility that state officials have several incentives<br />
to welcome federal intervention rather than protect state interests.<br />
Justice O'Connor makes this point in New York'8 3 when discussing<br />
locations for radioactive waste disposal centers:<br />
If a state official is faced with the same set of alternativeschoosing<br />
a location or having Congress direct the choice of a locationthe<br />
state official may prefer the latter, as it may permit the avoidance<br />
of personal responsibility. The interests of public officials thus may not<br />
178 Yoo, supra note 46, at 1318-19.<br />
179 Calabresi, supra note 5, at 792-93.<br />
18o THE FEDERALIST No. 45 (James Madison), reprinted in 2 DEBATES, supra note 26,<br />
at 103.<br />
181 Yoo, supra note 46, at 1321.<br />
182 Calabresi, supra note 5, at 793.<br />
183 New York v. United States, 505 U.S. 144 (1992).<br />
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coincide with the Constitution's intergovernmental allocation of<br />
authority. Where state officials purport to submit to the direction of<br />
Congress in this manner, federalism is hardly being advanced.l1 4<br />
Richard Neely observes that the "states are more interested in<br />
spending federal bucks than they are in preserving state sovereignty. To<br />
my knowledge no state (except, possibly, Arizona in one instance) has<br />
turned down federal money to stand on federalist principle!"1 8 5 Neely<br />
believes this to be a positive turn of events; regardless, it demonstrates<br />
that political safeguards are inadequate to protect the structure of<br />
federalism.<br />
More important than the fact that the Weschler-Choper theory fails<br />
on functional grounds, is that it fails on formal constitutional grounds.<br />
Choper's approach is unable even to detect "whether or not separation of<br />
powers has been maintained because it makes no attempt to define or<br />
examine it. He solves the problem of interbranch disputes by simply<br />
assuming they do not require resolution (at least not by the judiciary)."186<br />
The same criticism applies to his federalism proposal. In essence, Choper<br />
ignores the structures of the Constitution because he assumes that,<br />
functionally, things will work out to their most efficient end.<br />
Worse, and even more dangerous, is Choper's separation of<br />
individual rights from the Constitution's structure. As this article has<br />
discussed, the whole point of the structures of the Constitution is the<br />
protection of the People's liberty against tyranny. Choper's position is "a<br />
highly anachronistic view because the Bill of Rights did not appear in<br />
the Constitution when Article III first vested in the judiciary the power<br />
to adjudicate cases arising under the Constitution." 187 Finally, Choper's<br />
theory is premised on the belief that the Court can pick and choose the<br />
constitutional provisions it wants to enforce. "Nothing in the nature of<br />
the judiciary's role authorizes it effectively to repeal provisions of the<br />
Constitution." 88 In fact, the independence of the judiciary makes it<br />
especially suited to handle disputes between different levels and<br />
different branches of government. Few reasons exist to ignore completely<br />
either the structure of the Constitution or the provisions in the Bill of<br />
Rights.189<br />
184 Id. at 183.<br />
185 Neely, supra note 94, at 90.<br />
186 Redish & Cisar, supra note 29, at 493.<br />
187 Id.<br />
188 Id.<br />
189 1 have not and am not saying that substantive violations of the Constitution<br />
should not be invalidated by the Supreme Court. Thus, a statute preventing anarchists<br />
from espousing their views could and should be struck down as an obvious violation of the<br />
First Amendment. What I am saying is that these decisions by the Court should only be<br />
made in the rare cases of clear mistake or the other established rules of statutory<br />
construction. On structural issues, the Court ought to be less reticent.<br />
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Richard Neely takes a different functional approach toward<br />
essentially the same end as Choper. He asks, "[I]f the states themselves<br />
aren't interested in [the] principle [of federalism], why should we be?" 90<br />
He contends that federalism is now simply a matter of administrative<br />
convenience, and where it interferes with governmental efficiency, its<br />
principles ought to be set aside. 191 Professor Douglas Laycock goes one<br />
step further and contends that "[Ilederalism no longer divides power in<br />
any meaningful way. Instead, federalism duplicates and multiplies<br />
power.1 92<br />
This view ignores some vital points. In the first place, according to<br />
Justice O'Connor's opinion in New York, the fact that state officials may<br />
not care about their sovereignty does not mean that the Court or the<br />
country should not care about it. Moreover, concentrating on what<br />
federalism does for the states, just as concentrating on what the<br />
separation of powers does for each of the branches, misses the larger<br />
point. "ITihe Constitution divides authority between federal and state<br />
governments for the protection of individuals. State sovereignty is not<br />
just an end in itself." 193 So, whether the states are interested in<br />
protecting themselves or not, individual freedoms still deserve to be<br />
protected by government structure. Perhaps delegated power has become<br />
more "a matter of administrative convenience than an element of<br />
sovereignty." 194 However, either the principle of delegation stands, or the<br />
Constitution falls; there is no other way around it. It defeats the whole<br />
purpose of a written Constitution to assign meaning solely on the basis<br />
of convenience or efficiency.<br />
Efficiency is emphatically not central to our Constitution; ordered<br />
liberty is the main point. "The Constitution's structure requires a<br />
stability which transcends the convenience of the moment." 195 Efficiency<br />
is not the acid test for constitutionality. "[Tihe fact that a given law or<br />
procedure is efficient, convenient, and useful in facilitating functions of<br />
government, standing alone, will not save it if it is contrary to the<br />
Constitution. Convenience and efficiency are not the primary objectives -<br />
or the hallmarks - of democratic government." 19 6 The famous saying that<br />
"at least Mussolini made the trains run on time" was not intended as a<br />
compliment: a government can be an efficient tyrant. "The choices we<br />
discern as having been made in the Constitutional Convention impose<br />
190 Neely, supra note 94, at 90.<br />
191 Id.<br />
192 Douglas Laycock, Federalism as a Structural Threat to Liberty, 22 HARv. J.L. &<br />
PUB. POL'Y 67, 80-81 (1998).<br />
193 New York v. United States, 505 U.S. 144, 189 (1992).<br />
194 Neely, supra note 94, at 90.<br />
195 Clinton v. City of New York, 524 U.S. at 448 (Kennedy, J., concurring).<br />
196 INS v. Chadha, 462 U.S. 919, 944 (1983).<br />
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burdens on governmental processes that often seem clumsy, inefficient,<br />
even unworkable, but those hard choices were consciously made by men<br />
who had lived under a form of government that permitted arbitrary<br />
governmental acts to go unchecked." 197 If it is efficiency we want, we<br />
ought to forego the right to vote altogether: the information,<br />
campaigning, and time involved make for highly inefficient government.<br />
"With all the obvious flaws of delay, untidiness, and potential for abuse,<br />
we have not yet found a better way to preserve freedom than by making<br />
the exercise of power subject to the carefully crafted restraints spelled<br />
out in the Constitution."198 Those restraints include a Court that patrols<br />
the boundaries of delegated government power.<br />
Proponents of Choper's theory argue that defining sharp lines<br />
between executive and legislative functions or between national and<br />
local functions is too difficult for the courts. 199 This argument fails,<br />
however, because determining which fundamental rights are "implicit in<br />
the concept of ordered liberty," 200 or which rights comport with the<br />
"mystery of human life" 201 is not an easy task either. Even speaking more<br />
generically, "the line-drawing and fact-finding problems here are no<br />
more difficult than they are in the context of determining what<br />
constitutes an impermissible endorsement of religion or when . . .<br />
unprotected obscenity becomes protected pornography." 202 Professor<br />
Choper admitted as much: "A great many of the personal liberties<br />
questions that the Court decides . . . similarly subsume large policy<br />
issues with complex and debatable factual considerations." 203 To admit<br />
this in structural areas of constitutional adjudication is simply to<br />
acknowledge that several issues are not cut and dried; if they were, we<br />
would not need a court system at all. The Court should not shy away<br />
from an issue because it is difficult; rather, it should shy away if the<br />
Constitution offers no guidance. Federalism and separation of powers<br />
issues, however, are clearly within the import of the Constitution. A<br />
supporter of structural activism need not prove that all delegation of<br />
power questions will be decided correctly. What he must do is attempt to<br />
remain dedicated to the first principles of the Constitution.<br />
197 Id. at 959.<br />
198 Id.; see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952).<br />
199 Hovenkamp, supra note 174, at 2220.<br />
200 Palko v. Connecticut, 302 U.S. 319, 325 (1937).<br />
201 Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992) (For the record, the<br />
actual quote is: "At the heart of liberty is the right to define one's own concept of existence,<br />
of meaning, of the universe, and the mystery of human life.") Id. Structural cases simply<br />
are not conducive to such open language.<br />
202 Calabresi, supra note 5, at 804.<br />
203 CHOPER, supra note 173, at 203.<br />
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Dedicated pursuit of an ideal is a legitimating reality, even though the<br />
reach exceeds the grasp, provided that the people know that the effort<br />
is undertaken. And the value of the ideal is not diminished by<br />
acknowledging that its conscientious pursuit serves the utilitarian<br />
function of giving legitimacy to constitutional decisions. 20 4<br />
Criticism of the viewpoint espoused in this article could conceivably<br />
also come from the right side of the political spectrum, because of its<br />
traditionally staunch support of judicial restraint, as we have seen with<br />
President Reagan, Judge Bork, and Professor Graglia. Perhaps the<br />
strongest criticism of judicial activism came in a 1996 symposium<br />
entitled: "The End of Democracy? The <strong>Judicial</strong> Usurpation of Politics," 20 5<br />
by First Things, a conservative religious journal. It is an appeal that<br />
serves as a valuable wake-up call concerning the dangers inherent in<br />
judicial review. However, it goes overboard in establishing its case. For<br />
instance, the editors of First Things write that the "government of the<br />
United States of America no longer governs by the consent of the<br />
governed. With respect to the American people, the judiciary has in<br />
effect declared that the most important questions about how we ought to<br />
order our life together are outside the purview of 'things of their<br />
knowledge. ' "' 2 6 This article does not contend for a moment that<br />
substantive judicial activism has been good for this country. 2 7 But to say<br />
that the People no longer govern on any issues of importance borders on<br />
hyperbole. "The courts have not, and perhaps cannot, restrain<br />
themselves, and it may be that in the present regime no other effective<br />
restraints are available. If so, we are witnessing the end of<br />
democracy." 208<br />
Problems abound with that statement. In the first place, as this<br />
article reiterates, we do not have a democracy; we have a system of<br />
constitutionalism: the People rule within bounds designed to inhibit<br />
their darker passions. Secondly, the restraints on the courts are<br />
available and exist within the system. To declare the system a dismal<br />
failure after over two hundred years simply because the Supreme Court<br />
has taken on the role of "knight errant" 20 9 on some occasions throws the<br />
204 Cox, supra note 15, at 138.<br />
205 Robert H. Bork et. al, Symposium, The End of Democracy? The <strong>Judicial</strong><br />
Usurpation of Politics, FIRST THINGS 18, Nov. 1996, reprinted in THE END OF DEMOCRACY?<br />
THE JUDICIAL USURPATION OF POLITICS (1997).<br />
206 Id. at 5.<br />
207 Professor Graglia puts it rather humorously when he asks, "[Wihat part of the<br />
Constitution do you think Justice Harry Blackmun was interpreting in Roe v. Wade, when<br />
he held that state restrictions on abortion violate the Due Process Clause of the Fourteenth<br />
Amendment-was it the word 'due' or the word 'process?'" Graglia, supra note 14, at 297.<br />
208 Bork, Our <strong>Judicial</strong> Oligarchy, supra note 205, at 6.<br />
209 United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193, 218<br />
(1979) (quoting Justice Cardozo).<br />
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baby out with the bath water. The contributors to the First Things<br />
debate decry the evils of judicial activism, but they enthusiastically<br />
support the idea of natural law.210 As we saw in Part III, as well as in<br />
Part I while defining judicial activism, natural law is open to the same<br />
abuses that judicial activism engenders. In fact, several of the decisions<br />
about which First Things complains, such as Roe, ground their opinions<br />
in a kind of natural law jurisprudence. The point here is not that the<br />
editors of First Things must either support Roe v. Wade or renounce<br />
natural law - clearly their version of natural law can be different from<br />
the Court's in Roe; the point is to understand that judging inherently<br />
involves the kinds of problems that the editors declare represent the<br />
"end of democracy." The solution to those problems is not to declare the<br />
system broken, but to demand adherence to true fidelity to that system<br />
(i.e., the Constitution). And it is perfectly within the power of the People<br />
to demand this, because, as we have learned, the power of the Supreme<br />
Court is wholly dependent on its legitimacy. 21 '<br />
Obviously, several other theories of constitutional jurisprudence<br />
exist that have not been addressed. Only those that speak most directly<br />
to the position being advocated in this article have been rejoined.<br />
Structural activism is but one piece of the constitutional fabric, but it is<br />
a very important piece. It is time for advocates of both jurisprudential<br />
activism and judicial restraint to consider its validity.<br />
Having preached the virtues of judicial restraint for several<br />
generations, conservatives will have to reevaluate their position. As<br />
they did in the late 1930's, liberals and conservatives in the late 1990's<br />
will debate about whether the courts or the political process are better<br />
equipped to police the boundaries of federalism and the separation of<br />
powers. 212<br />
210 Bork, Our <strong>Judicial</strong> Oligarchy, supra note 205, at 6 ("Among the most elementary<br />
principles of Western Civilization is the truth that laws which violate the moral law are<br />
null and void and must in conscience be disobeyed.").<br />
211 Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a<br />
National Policy-Maker, 6 J. PUB. L. 279, 285 (1957).<br />
The fact is ... that the policy views dominant on the Court are never for<br />
long out of line with the policy views dominant among the lawmaking<br />
majorities of the United States. Consequently it would be most unrealistic<br />
to suppose that the Court would, for more than a few years at most, stand<br />
against any major alternatives sought by a lawmaking majority.<br />
Id.<br />
Of course, sadly this is part of the problem to begin with-that the<br />
Court follows policy preferences at all, when it ought to be following the<br />
Constitution. But the point here is that the Court can only get away with what<br />
we let it get away with, given a certain amount of time.<br />
212 Jeffrey Rosen, Nine Votes for <strong>Judicial</strong> Restraint, N.Y. TIMES, June 29, 1997, at<br />
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V. CONCLUSION<br />
In evaluating the role of the federal judiciary in our system and,<br />
more specifically, the proper place for judicial activism in the courts, it<br />
must be remembered that, with the passage of the Constitution, the<br />
Founders implemented a novus ordo seclorum: a new order for the<br />
ages. 21 3 The Founders turned the political ideas of the world on their<br />
head. Virtually everyone believed that sovereignty must reside in only<br />
one governmental body, but the Founders divided it between the Federal<br />
and State levels. Most said that the separation of powers required that<br />
the branches of government must be completely separate, but the<br />
Founders split them while providing checks and balances. Conventional<br />
wisdom held that the legislature had to have the final say in what the<br />
laws would be, but the Founders made the People the final arbiters of<br />
the law, through the Constitution. This was not a republic in any of the<br />
ordinary senses of the term. 21 4 <strong>Judicial</strong> review was part of this new<br />
order, because of the Founder's emphasis on a written Constitution. So,<br />
if it seems that judicial review is a unique tool, it is because it truly is,<br />
and like any of our tools, in the hands of corrupt man it can be misused.<br />
The Founders knew these things, and knew that if this new order was to<br />
succeed, it would require the ongoing vigilance of the government by the<br />
governed. This is why "[w]hen Americans stop arguing about legitimacy,<br />
about just government derived from the consent of the governed, and<br />
about the relationship between laws and higher law, this country will<br />
have turned out to be something very different from what the Founders<br />
intended. 215<br />
"Limiting the federal judiciary, including the Supreme Court, to its<br />
proper Constitutional role thus is a vital liberty issue." 216 This article has<br />
sought to describe some of that proper role, where it concerns the<br />
dangerous but necessary duty of judicial activism. The premise has been<br />
that the structure of the Constitution deserves and demands the main<br />
focus of the Supreme Court, because its fundamental role in our system<br />
213 MCDONALD, supra note 82, at 262.<br />
214 Id. at 287.<br />
That government defied categorization by any existing nomenclature: it<br />
was not a monarchy, nor an aristocracy, nor a democracy, neither yet was it<br />
a mixed form of government, nor yet a confederated republic. It was what it<br />
was, and if Madison was presumptuous in appropriating the word republic<br />
to describe it, he was also a prophet, for thenceforth republic would mean<br />
precisely what Madison said it meant.<br />
Id.<br />
215 Richard John Neuhaus, Preface to THE END OF DEMOCRACY, supra note 162, at<br />
ix.<br />
216 Edwin Meese III, A Return to Constitutional Interpretation from <strong>Judicial</strong><br />
Lawmaking, 40 N.Y.L. SCH. L. REV. 925, 932-33 (1996).<br />
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represents a primary way that judicial review can be legitimate.<br />
Excessive activism, as we have seen, produces grave consequences.<br />
First, there is concern that the Court may sacrifice the power of<br />
legitimacy that attaches to decisions within the traditional judicial<br />
sphere rendered on the basis of conventional legal criteria, and so may<br />
disable itself from performing the narrower but none the less vital<br />
constitutional role that all assign to it. Second, there is fear that<br />
excessive reliance on the courts instead of self-government through<br />
democratic processes may deaden a people's sense of moral and<br />
political responsibility for their own future, especially in matters of<br />
liberty, and may stunt the growth of political capacity that results<br />
from the exercise of the ultimate power of decision. 217<br />
This article does not seek to push judicial activism to the point that<br />
these concerns will come to fruition. Rather, it proposes a partial<br />
antidote to these problems. First, by starting with the founding<br />
principles of this republic: man is fallen; this is a government of laws,<br />
not of men; we have a written constitution; no man is allowed to be the<br />
judge in his own cause; concentration of political power means tyranny;<br />
and the recognition that no dichotomy exists between structure and our<br />
sacred rights, any temptation to place excessive reliance on the courts<br />
instead of self-government is overcome. Second, by recognition of an<br />
adherence to what are the key structures in our system: separation of<br />
powers and federalism. Adherence to these key structures prevents the<br />
courts from whittling away their legitimacy, and focuses their powers on<br />
the narrower, but vital, constitutional role assigned to them.<br />
Proper judicial activism does not threaten the republic; it emboldens<br />
it. When activism leaches into an improper sphere, as it is bound to do, it<br />
remains for us to pull it back, and to remind the judiciary that we are a<br />
government of laws, not of men. While judges may interpret the law,<br />
they are not the law themselves; and when they attempt to equate<br />
themselves to the law, as they do when basing decisions upon their<br />
consciences rather than the Constitution, it is up to us to call them on<br />
the carpet, and point them back to the Text. Respect for the system and<br />
a desire to protect liberty demand no less of us, and proper judicial<br />
activism demands no less a fidelity from judges.<br />
217 COX, supra note 157, at 103.<br />
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