Rights and the American Constitution: The Issue of Judicial Review and Its Compatibility with Democracy
This chapter deals with American judicial interpretation of two key constitutional ideas—the idea of ‘due process’ and the idea that the Fourteenth Amendment selectively brings in or ‘incorporates’ many of the rights of the Bill of Rights and applies thes
- PDF / 121,141 Bytes
- 13 Pages / 439.37 x 666.14 pts Page_size
- 58 Downloads / 221 Views
Rights and the American Constitution: The Issue of Judicial Review and Its Compatibility with Democracy Rex Martin
Abstract This chapter deals with American judicial interpretation of two key constitutional ideas—the idea of ‘due process’ and the idea that the Fourteenth Amendment selectively brings in or ‘incorporates’ many of the rights of the Bill of Rights and applies these rights as a standard for assessing the laws not only of the federal union but also of the various states in the USA. This sketch provides both a rationale for one line of development of American law in the twentieth and twentyfirst centuries (to date) and a template for examining the role courts (in a number of countries as well as the EU) have taken, or might take, in identifying and protecting, through judicial review, important basic constitutional rights. The chapter turns (in its final section) to a discussion of judicial review and attempts to provide a principled resolution of the problematic that judicial review poses within a democratic system of rights.
3.1
The Original Constitution and the Bill of Rights
The animating principles of the original constitutional government of the United States were distinctive: separation of powers, checks and balances, federalism, a written constitution and bill of rights, republicanism.1 But, interestingly, two important institutional features characteristic of American government today were missing from that initial constitution.
1
For an interesting account, and interpretation, of American constitutional thinking in the revolutionary period (around 1776) up through the time the Constitution was written and then ratified (1787–1789), see Shapiro (2011), Legality, ch. 11; also pp. 366–368. R. Martin (*) Department of Philosophy, University of Kansas, Lawrence, KS, 66045, USA e-mail: [email protected] A.E. Cudd and S.J. Scholz (eds.), Philosophical Perspectives on Democracy in the 21st Century, AMINTAPHIL: The Philosophical Foundations of Law and Justice 5, DOI 10.1007/978-3-319-02312-0_3, © Springer International Publishing Switzerland 2014
29
30
R. Martin
(i) The government contemplated there was not democratic, nor did it claim to be. By our contemporary standards, the original constitutional government failed to be democratic in two main particulars: there was no commitment to universal franchise (on a one person, one vote basis) and the principle of majority rule was not taken to be fundamental. And (ii) there was no notion of judicial review expressly stated in the Constitution (though it had been advocated in the Federalist Papers, a series of essays published in 1787–1788 in New York newspapers arguing in favor of ratification of the Constitution; see here essay 78). This particular institution (which involves the power of courts to declare laws passed by Congress—or by a state—to be unconstitutional and therefore void) was added by a Supreme Court ruling in 1803 (in Marbury v. Madison, 1 Cranch 137). I’ll return to these two novel principles and institutions, democratic rule and judici
Data Loading...
