Judicial Review in the UK and the USA - Essay Example

Judicial Review in the UK and the USA Introduction Judicial review may be defined as the power to review the constitutionality of a legal or administrative regulation by a court of law for consistency with the constitution, statute or treaty1. Judicial review may also be defined as “a court's review of a decision of a lower court in order to determine whether an error was made”2. Judicial review notable has a threefold function. First of all, it makes it possible for justice to prevail by down striking a decision made by lower courts in error. Secondly, the appellate courts through such reviews keep in check the performance of lower courts. Thirdly, vital controversies that arise in the interpretation of law are reviewed and resolved with an aim of guiding future individual and court decisions. Judicial Review as Practiced in the United Kingdom and the United Sates of America In English administrative law, judicial review is accomplished when a court in Wales or England acts in a manner as to supervise the exercise of public power when a person makes such an application. In other words, an individual may apply for judicial review then they feel that a government authority has acted in exercise of its powers unlawfully or in a manner that violates the individual’s rights. When a court hears the case, it may quash the action of the government authority and demand that damages done to the individual be compensated3. In the United States the constitution fails to explicitly put in place the aspect of judicial review. The exercise of judicial review in the United States of America thus comes into being as it is inferred from the history, provisions and structure of the constitution unlike in England where parliamentary supremacy disregards the judicial review of fundamental legislation. The case of Marbury v. Madison (1803) in as decided by the Supreme Court of the United states of America establishes the very history of judicial review in the country. The Supreme Court ruled, against expectation and in a landmark case, that federal courts have the jurisdiction to weigh and act on the constitutionality of Congress’ actions declaring them void when they contravene the constitution4. Since this first case, federal courts in the US have exercised their power to judicial review. Judicial review was exercised even before that Constitutional Convention in several states. This is seen in respect of the fact that at least seven of 13 states had experienced the invalidation of their statutes on the grounds that that they violated the higher law or the constitution in one way or another. Hayburn's Case (1792) is one case that saw judicial review in practice as the court held the decision of Congress regarding pension applications unconstitutional. Hylton v. United States (1796) as decided by the US Supreme Court also saw Congress challenged in a matter relating to direct taxes. The Judiciary Act (Section 13) that establishes the US judicial courts gives the Supreme Court the authority to "to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States"5. Components of Judicial Review For a higher law to be applied effectively, the ruler having constraint in making decisions, there needs to be a set of procedures through which the regulations can be translated into practical actions. The procedures afore mentioned encompass the codification of the law in a manner that is legally cognizable in terms of language used, reliance on a competent institution to make interpretations of the regulations as well as the existence of a social agreement that the rulings made by the institution that interprets the regulations are supreme and must therefore be upheld. In simple terms judicial review demands three basic elements to be functional in the modern world; the existence of written law or a constitution, the existence of a competent institution (court) to interpret the law and finally respect for the ruling in respect of its supremacy6. Judicial Review against Democratic Theory Democratic theory encompasses the various theories and postulates that provide for the supremacy of the majority in the democratic setting. Representative democracy theory postulates that the majority are the custodian of the governing order enshrined in the constitutional dispensation of the people. It follows that the majority have control over the various governing rules. Jurisprudence established under the democratic theory regime automatically places the authority to incorporate changes in the democratic order in the hands of the majority. In such a case, democratic theory represents a majoritarianism regime which must get the nod from the majority if changes into the order are to be instituted. The executive and the legislature represent the only functional organs of a democracy that can facilitate the appropriate majoritarianism element of change in any sections of the constitutional dispensation. Judicial review on the other hand is a doctrine that enables the judiciary, which is less representative of the majority in the democracy when compared to legislature and executive, to review, scrutinize and question the majoritarianism backed other two organs of the government. In such a case, there is a conflict of power in the sense that constitutional mandate to introduce changes in the governance order is vested in the majority. This countermajoritarian principle and concept between democratic theory and judicial review was introduced and propagated by Alexander Bickel. However, in a persuasive development conducted by numerous constitutional researchers, it is unclear on how countermajoritarian principle would be sustainable, since democratic interpretation is not an exclusive representation of majoritarianism7. According to Ackerman, it is possible to reconcile the two principles since the court gets the mandate to directly from the people’s representation and acts in all cases to protect and serve the “preservationist purpose.”8 Powerful Judiciary The judiciary with a powerful presence in the democratic setting is perhaps more versatile in the consolidation and guarantee of a people led governance. By conferring review capabilities on the judiciary, it is a healthy practice that keeps the executive and legislature in appropriate checks. Democratic values propose an independent judiciary in order for an appropriate jurisprudence to be established in the governing order. Due to the versatility that the judiciary with a powerful review capacity has in the governing order, it is possible for the democracy to achieve its mandate and accountability to the people.9 In light of the magnitude of the responsibilities bestowed on all the arms of the government, it is clear that the social institutions must be empowered and facilitated to feel equally powerful to make contributions towards democratic dispensation of the governing order. It cannot be correct to make an assumption that a certain arm of the government is under any restriction to carry out what it feels to constitutionally lie in its hands mainly on interpretation intricacies such as controversial Bickel’s countermajoritarian concept. A powerful judicial system is one that has the capacity to declare null and void the decisions made by the legislature or executive, usually a mandate of the Supreme Court. In other, such a system is one that has the capacity to perform judicial review. There are a number of disadvantages associated with a powerful judicial system. One of the major disadvantages with judicial review is the possibility of delays associated with government activities. This is seen in the sense that before any law is enacted by government or certain activities undertaken, a branch of government or government authority may always have to spare a lot of time consulting legal experts to ascertain the constitutionality of it proposed activity. Yet another disadvantage associated with a powerful judicial system is the tendency for bias in the Supreme Court as it aligns itself to the larger political trends. In the words of Balkin, “The great irony … is that history shows that the Supreme Court continually responds to larger political trends, revising its earlier views over time to conform to the values of changing national majorities. The Supreme Court isn't counter-majoritarian”10. What this means is that the Supreme Court may make a ruling not based on the admission of justice but rather in favour of the political powers that be. Conclusion Judicial review which is normally established with a view of checking the actions of government has been practiced ion various nations, and in various forms. In the US, it is not enshrined in the constitution although it has been applied historically in various instances. In spite of its threefold purposes, judicial review may be disadvantage in that it may reduce the efficiency of government by delaying its activities. It may also act in favour of certain political forces and therefore against true justice. Bibliography Balkin Jack. What to Do About the Court? 2009. Viewed 27 May, 2011 http://prospect.org/cs/articles?article=what_to_do_about_the_court Law.jrank. Judicial Review: Definition. 2011. Viewed 27 May, 2011 http://law.jrank.org/pages/12512/Judicial-Review.html Law2.umkc. Judicial Review: The Issue;  Does the Constitution Give the Supreme Court the Power to Invalidate the Actions of Other Branches of Government? (nd). Viewed 27 May, 2011 http://law2.umkc.edu/faculty/projects/ftrials/conlaw/judicialrev.htm Hazard, Geoffrey and Michele Taruffo. American Civil Procedure: An Introduction. New Haven, CT: Yale University Press, 1993. Hornstein, Alan. Appellate Advocacy in a Nutshell. St. Paul, MN: West, 1984 James, Fleming, and Geoffrey Hazard. Civil Procedure. Boston: Little, Brown, 1985. Lemieux, Scott & Watkins, David “Judicial Review, Veto Points, and Democratic Theory,” Western Political Science Association 2010 Annual Meeting Paper , 29 March 2010. Viewed 28 May, 2011 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1580536 Ackerman, Bruce We the people. Cambridge: Harvard University Press, 1991. p.320 Read More