Reconciling weak constitutional review and democratic principles

Reconciling weak constitutional review and democratic principle

I believe that a weak form of constitutional review where the unelected judges have no final say could be reconciled with the fundamental principles of democracy. The purposes of this paper will be to support the above-stated fact. Many countries have a written constitution that acts as the supreme law of the land. This means that any other law that is inconsistent with the constitution is considered null and void. The constitution of any country is usually enforced by the legislature. These are elected representatives of the people elected through the voting process. Democracy has always been about involved every member of a given society or country in decision making. It gives each and every one say on national matters which is projected in their power to vote for representatives to represent them. Every citizen of any democratic country has been vested with the power to one vote. 

Constitutional review is also known as judicial review in the U.S. This performs the action of giving no legal effect in any case that is found to be inconsistent with constitutional norms. This is usually the case in the operation of the rule of stare decisis under the US law. When a higher court upholds this decision, any other subordinate court under it must also uphold the same decision. The power to judicially review any judgments taken is a superior power that is vested in the Supreme Court to review the action of the government for consistency with the Constitution. Judicial review is meant to act as an independent oversight to ensure that the democratic principle are respected and protected.

Judicial review, the one that is presented by academic writers through  has always been attacked as far as involvement democratic rights are concerned. This is because a few unelected individuals are vested with the power of majority voting. This act in itself excludes the common citizens and ignores the democratic principles of representation and political equivalence. The power vested in the judiciary to overrule the legislature are contradictory to the principles of democracy. The systematic framework of giving each and every citizen one vote, promote equality and democracy. This provides each nation with enough political resources for promoting a balance of power that encourages each side of parliament to promote compromise. Each and every single member of the society no matter how small they are is vested with the power to vote by the constitution. Through the application of this understanding, them we can assume that the democratic process is the constitution.

On the other hand, each and every oversight body has some role to play in upholding the basic principles of democracy. Individuals who support this opinion regularly contend that judicial review is an essential process because it enriches safeguarding against the oppression of the masses. These individuals purport that it is not the work of the judges to check the people, but the constitutions work. The Constitution itself has also been popularly sanctioned which ensures that there is nothing undemocratic in the power vested in the judicial review. For this reason alone, there have been many controversies surrounding whether judicial review can be reconciled with the principles of democracy. The question on whether judicial review is compatible with a democratic government has often arisen.

In the case where the judiciary acts as an independent body but has no final say in the matter I believe the two can be reconciled. The only problem that would arise is that the judiciary, in this case, would be subject to neglect since they have no final say. This would mean that any input forwarded from the judicial review could be ignored by the legislature. But in a case where the judiciary review’s input is put into consideration, the two can be reconciled. This is the case because, the will be vested with the role of an independent oversight. For every action that will be taken that is not consistent with the constitution, they will be able to protect the citizens from majoritarian control. The purpose of the judiciary to be independent is to protect it from any political influence that would influence the decisions they make.

The purposes of this paper have been to contend the reconciliation of democratic principles against the constitutional review. Each and every oversight body, the judiciary or the legislature, has its power and mandate. To understand why there has been conflicting, we are going to look at it from two angles. First is the substantive view and later the procedural view. The substantive view upholds that it is extremely difficult to resolve whether or not the judiciary is superior to the legislature at protecting the people’s rights. This is the case because the evidence available on this matter is totally inconclusive. The constitution of say U.S does not rank which body is supreme over the other. Each of them is classified under the arms of the government without which the government cannot function properly. Many theorists have tried to rank the two in terms of the powers vested in them which should not be the case. The two bodies should complement each other to ensure an efficient democratic government. The only way we can be able to reconcile the two is if we can look at them from the complementary perspective.

On the procedural view, the legislature of a country is usually taken to be more superior to the judiciary. This is usually the case because the legislature is more legitimate and participate more in the embodiment of crucial democratic rights and principles than the judiciary could. In most of the enactments of the constitution, the legislature is more actively involved. It duty is also to make laws and change them where and when it is necessary. Hence when it is argued from this perspective, the legislature has been providing with more mandate than the judiciary. In reality this is true, the judiciary was meant to enforce and protect the law. Without one, the other cannot be able to function properly.

In some case, judicial review is necessary. This is so when it seeks to preserve fundamental democratic rights from majoritarian judgment. Judicial review is becoming a popular choice across many nations of promoting non-majoritarian representative democracy. It is argued that the aim of having a judicial review framework is to promote democratic results while at the same time preserving popular participation in democratic processes. This is usually supported if the judges have been elected by elected representatives who are not so when they are unelected. For proper functioning of the judiciary, it must be independent of any political or executive influence.

The judicial review comes in two forms the strong and the weak. The former has been always the subject of controversy. The latter is the one we are trying to argue whether it can be reconciled to ensure that the principles of democracy are upheld. In our case, stare decisis is not applicable. The courts may not fail to apply a decision just because some rights are going to be violated. Most of the controversy surrounding the two has always revolved around the issue of rights rather than the efficiency of their systems.

Citizens of any country should learn and be willing to create a compromise between the two which is in itself a basic democratic principle. The constitutional review and democracy can be reconciled to ensure that the building block of a democratic government is preserved. It is not so much about the judicial and legislative structure put in place but also by having individuals in the country who are devoted to cultivating the individual rights. This is in itself would provide reconciliation and promote an accurate and functioning democratic community. The weak form of judicial review, in this case, does not take the right to make a decision from the public but will act as a means to enlighten the public on why a certain decision should not be applied. Protecting them from making mistakes in decision making.