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When man settled and established societies, he also established certain rules, a code of conduct, if you will, in order to guarantee that the rights and liberties of all would be protected.  Today, the efforts of early man have paid off; societies thrive (they are continuously growing and developing), and this means that laws have also evolved with the passing of time (otherwise, they would not be able to continue protecting the rights and liberties of people in an ever-changing environment).  In the United States, for instance, justice lies in the hands of a group of learned individuals that have the obligation to interpret and exercise law in a just, objective, unbiased way; these learned men are known as judges, and they are present in pretty much all legal systems, regardless of the society that is being considered (although there may be exceptions). 

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In recent years, however, concerns have been raised about whether or not the legal establishment, more specifically judges, should be political; the debate has been fueled by the apparent clash between judicial review and democracy.  This last issue has taken center stage in a seemingly never-ending confrontation between those who stand by the government and its legislative institutions and those who stand against them (and demand that changes be made to guarantee that the rights of democracy will be upheld always).  In light of this, the question that must be answered is the following: Can a judicial review be reconciled with democratic principles? If so, how can they be reconciled, and has the U.S. Supreme Court consistently met the conditions that are necessary for employing its power of judicial review in a manner consistent with democratic principles? Now, if the judicial review cannot be reconciled with democratic principles (as there are those who feel this way), what would need to be determined is whether or not judicial review takes precedence over democracy, or if it is the other way around. 

It is my personal belief that judicial review can be reconciled with democratic principles. In fact, I would go as far as saying that no reconciliation is even necessary because the judicial review has never gone against democratic ideals. Rather, judicial review has served as a democratic institution created by the people for the good of the people.  Many might not recognize this, many might not accept it to be true, but the bottom line is that judicial review is not only consistent with democracy, but it is also necessary for democracy’s best interest to be served.  Justice is ultimately a social institution, created by the people, for the people; due to this, it should not be compromised by individual interests, needs, or wants, but rather be allowed to guarantee that justice is upheld at all times; judicial review guarantees this, and so it is outright wrong to state that it diverges from democratic principles. 

In recent years, the debate between constitutionalism and democracy has reached a stalemate; no real advances have been achieved because any insight focuses almost exclusively on judicial review (which means that the core issue gets sidetracked).  The chief concern should not be judicial review, but rather the ways (if there’s any) in which the people can reconstitute their constitution (modifying laws and institutions as they see fit). On this point, however, judicial review does come into play, because if judicial review impedes the public from reconstituting its constitution if it is deemed necessary, it could be seen as an institution that comes into conflict with democratic principle (in this case, with the right that the people have to govern themselves). In my opinion, however, this assertion is not entirely true; the judicial review may impede the public from reconstituting its constitution, but this is not enough to state that judicial review comes into conflict with democratic principles because democracy is more than allowing the people to do whatever they want.  Sometimes, in order to guarantee that democracy is upheld, certain institutions must be created to impose limits on the people’s rights.  

Of course, those who are against judicial review will not agree to this; in their minds, the people should have to do whatever they want in terms of self-governance; if they want to change the government, to change laws, they have every right to do so because that is exactly what democracy’s all about.  Like Freeman (1991) states, those who are against judicial review found their argument on the fact that it hinders the people’s equal rights of participation.  For these people, it is absurd to propose that an institution is democratic when it openly limits the people’s rights to equal participation.  How? By giving power to a group of select, learned individuals, to decide on whether or not the changes sought after by the people are adequate or not (if they are valid or not).  These people may have a point, especially when considering that democracy is a form of government that gives power to the people. 

Surely, if there were such an institution, one that makes it difficult for people to govern themselves, to make their own decisions, it must surely be a threat against democracy (thus meaning that reconciliation between the institution and democracy should be guaranteed or the institution would have to disappear altogether).  This would be the logic of someone who is adamant about demonizing judicial review or any other institution that makes it impossible for people to do whatever they want.  In my mind, however, judicial review needs not to be reconciled with democratic principles simply because it does not contradict those principles.  Why?  To answer this question, I fall back on the words of Freeman (1991), who states:

Undoubtedly, giving the people unlimited power to govern itself might be dangerous; democratic government calls for majority rule (as reaching a consensus amongst all members of society would prove to be impossible), but uncontrolled governance by the majority might prove to be undemocratic.  Once again, the question here would have to be: why?  The reason would be that majority rule could potentially threaten the basic rights of minorities (white Americans, for example, could pass legislation that would benefit whites, but that would not necessarily be in the best interest of minorities such as Latin Americans or native Indians).  This argument is, in my opinion, a strong one in favor of judicial review; it also helps to prove that judicial review actually is not against democratic principles, but rather in their favor. 

Another important factor that must be considered before deciding to definitely go away with judicial review is the error factor that must always be taken into account when talking about politics and people’s rights. What guarantees that a person’s rights are respected?  What guarantees that justice is imparted righteously and objectively? The detractors of judicial review might not like having to accept it, but the truth is that at present it is precisely this institution the responsibility for defending justice, and the people’s rights, from error.  Democracy is not perfect, but it is founded on the assumption that justice will be just swift, and objective; if people are to rule themselves without any kind of check, what is it to protect an individual, or a minority group, from unjust decisions made by opinionated, selfish majorities? People might not want to admit it, but human beings are selfish and insatiable by their very nature; society exists because man’s freedoms have been limited by the social contract, so in a way judicial review could be seen as a form of a social contract that enables society to uphold democracy. 

Granted, judicial review may help minimize errors in the administration of justice and the defense of people’s rights, but what about the people’s right to actively participate? Those against judicial review claim that by giving the administration of justice to courts, people lose their ability to participate and govern themselves. On this point, all I have to say is that such an argument is untrue, and I fall back on the words of Harel to state why:

If judicial review is in fact more democratic than what its opponents recognize, and if legislatures (where everyone has the right to participate and vote) are less democratic than people think they are, why bother with eliminating judicial review? Why bother with trying to replace an institution that is not attempting to deprive the people of their rights? Here, it could be possible to restate that judicial review does not contradict democratic principles. Instead, it would be possible to affirm that judicial review is in fact a recourse that government depends on to look after (and defend) the rights and liberties of the people (both majorities and minorities alike). 

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Thus far, this essay has managed to point out the reasons why judicial review is not considered to be against democratic principles.  In fact, it has been possible to point out that judicial review is an institution that looks after democracy; it checks and makes sure that the rights of the people are being respected at all times.  Of course, this is something that some accept, while others don’t.  In order to try and convince those who remain skeptics, another argument that aims to prove that judicial review is a democratic institution is the following: only through judicial review can it be possible for any person whose rights have been violated to exercise his/her right to a hearing (which will enable this person to fight for and defend his/her rights). 

Now, for those who still believe that judicial review goes against the principles behind the democratic government, here’s a solution that might prove to be satisfactory.  Mechanisms can be designed and implemented to increase the power of the people in changing constitutional law, thus offering another way of reconciling judicial review with democratic principles.  For example, the government could design and implement mechanisms such as “constituent assemblies convened 'from below' and popular initiatives to amend the constitution, institutions already present in some constitutional regimes”. 

The truth of the matter is that despite whatever people might feel about judicial review (whether they approve of it or not), it is unlikely that the United States Supreme Court will decide to eliminate judicial review altogether.  Different countries all over the world (with realities and histories different from that of the United States) have stuck with this legislative institution; the Supreme Courts of all of these countries have decided to hold on to judicial review, thus confirming the belief that constitutionalists view democracy as a possible threat to governmental stability.  Based on this information, it should be expected that the United States Supreme Court will also give precedence to judicial review (as a constitutional institution) over democracy.  Sure, this would give reason to believe that the Supreme Court has not been fully consistent with democratic principles (as has been the case in countries such as Canada and Venezuela). However, harboring such beliefs is wrong because judicial review is consistent with democratic principles.

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