How Ghosh Would Respond to Criticism Presented by Zurn - Essay Example

Introduction The issue of constitutional review is an important function of democracy. Constitutional review means that the sections of the constitution that do not meet the requirements of democracy are amended in order to meet the dynamic requirements that characterize democracy in many nations. In this respect, constitutional review is an important ingredient in the advancement of democratic space aimed at enhancing governance of people through strict adherence to the rights entrenched in the constitution. Hence, the function of constitutional review to constitutional democracy cannot be underestimated (Zurn, 2007). However, it is important to determine the most appropriate within which constitutional review should be undertaken in order to reflect constitutional democracy. The ideal of self rule among equal and free citizens is satisfied and implementable only when those citizens perceive themselves as co-authors of the laws they are subject to. It means that democracy should guide constitutional review where the citizens are involved in the process, rather, than relying on the opinions of a few individuals such as is the case in the judicial review process. In light of the above argument, this paper seeks to explore how Ghosh would respond to criticism presented by Zurn (2007) regarding the most appropriate platform upon which constitutional review should be undertaken. Zurn criticism Judicial review In his attempt to establish the most appropriate platform for constitutional review, Zurn (2007) noted that judicial review fulfills the first desideratum of independence. The reasons for this is that judges are unelected and so they are well situated institutionally to act as disinterested referees of the political marketplace rules. Additionally, Zurn argued that the judiciary would serve better in constitutional review due to the structural position that makes judges immune to political accountability thus making it possible for impartiality in constitutional review possible. Furthermore, Zurn argued that judicial review process would also serve better in constitutional review on desideratum of legal integrity because appellate courts perform a number of distinct functions that require strict upholding of legal integrity and thus constitutional review would be any different from other distinct functions performed by the appellate court. However, on desideratum of democratic sensitivity, Zurn (2007) criticizes the judicial review as the most appropriate platform for constitutional review by arguing that judiciary is structurally independent of the common mechanisms of democracy. This means that the ‘full blast of opinions and articulations presented by the society during constitutional review would be rendered useless. Hence, the views, deliberations and arguments amongst a wide selection of electorate affected by the constitutional norms under review would be ignored by the judicial review. Hence, judicial review fails in the third desideratum of democratic sensitivity that should be the guiding principle for constitutional review. Constitutional juries Constitutional juries are perceived as a more democratic alternative to court-based constitutional review. Gosh (2010) argued that constitutional review should be institutionalized in randomly selected juries of ordinary citizens. Referred to as a citizen court, Gosh argued that the court should comprise of about 200 randomly selected citizens in order to reflect a more democratic space. Decisions would involve more than 60 percent majorities of the juries. However, in order to operate effectively, the citizen court would need to operate under an explicit constitutional bill of rights that spells out expansive, open-ended and broad provisions of civil, social welfare, political and general justice rights. In his criticism, Zurn argued that process of selecting the juries reflects democracy sensitivity because the sortition mechanism for selecting citizen juries when compared with appointed legal elites take seriously the ideal of incorporating equal and free citizens in the constitutional review process by providing citizens with opportunities to review the laws they are subjected to. However, Zurn argued that constitutional juries would perform better on structurally independent desideratum and democratic sensitivity desideratum. However, constitutional juries would perform poorly on legal integrity desideratum. The main reason for this criticism is that Gosh’s argument for constitutional juries focus on individual rights claim and thus fails to protect constitutional assurances for democratic processes because such assurances are not entrenched in individual rights violations. Zurn argued that science the most important factor to consider during constitutional review is advancement of democracy, then constitutional juries would fail to meet or address the underlying principle of constitutional review. Since, Gosh focus his attention on designing constitutional juries to carry the functions of protecting individual rights, then the legal integrity desideratum is ignored and not met. Civic constitutional fora and concentrated judicial review Having singled out the shortcomings presented by the failure of democratic sensitivity desideratum and legal integrity desideratum, Zurn argued that a compromising position where a special constitutional court and a citizen court would be the most appropriate platform for constitutional review. The special court would serve the role of considering the constitutionality of ordinary law while a citizen court would perform the role of considering the lines of deliberative democratic assemblies. The special court would also play the role of promoting legal integrity using standard judicial techniques. Amendment proposals would be selected and certified in the deliberative democratic assemblies and later submitted to the citizens for ratification. Zurn argued that the combination of the judicial review and civic constitutional fora would fulfill all the desiderata to a certain extent even though not to a high degree. This is because democratic accountability would be assured because the two platforms are sufficiently and structurally independent of political accountability. The two platforms are also institutionally placed to act as referees in making decisions independent of political interference warranting the production of ordinary law. Even though, the specialized court will fail to meet the democratic sensitivity criteria, this will be nullified by the active participation of civic constitutional fora in the constitutional review process. Hence, the three desiderata will be met. Gosh’s response to Zurn’s criticisms In response to the criticism presented by Zurn regarding judicial review as inappropriate platform for constitutional review on its own due to the failure of democratic sensitivity desideratum, Gosh would respond by basing his arguments on the principle of social justice. Basing on this principle Gosh would rely John Rawls argument that social justice is one that gives priority to the worst off and which extends basic liberties to all. In this regard, institutions that best promote this concept of justice would be the most appropriate to be the platforms for constitutional review. Focusing on the issue of democratic sensitivity singled out by Zurn as lacking in the judiciary, Gosh would therefore argue that judicial review is indeed confined to matters that promote social justice and at liberty to perform their functions without interference from other quotas, and therefore endowed with the promotion of democratic sensitivity because social justice can only be achieved in democratic space. In other words, in the attempt to deliver social justice, the judiciary seeks to explore the rights of individuals that have been breached in the democratic space. In this respect, democratic sensitivity is an important consideration made by the judiciary in seeking to deliver judgments on social justice and liberty. Pertaining to the criticism presented by Zurn regarding the shortfall of constitutional review as falling short of legal integrity desideratum, Gosh would respond by presenting the argument that constitutional juries would also be constituted of legal elites whose qualifications can be equated to those of appellate judges. However, the constitutional juries would not be part of the appellate judges and in this case, their interpretations of the law during the constitutional review process would be above the required threshold. With respect to the assembly of juries, a small payment would be made in order to make the process of selecting the juries highly competitive by attracting the most qualified citizens to be included in the juries’ platform. It is important to take note of the fact that participatory vision takes seriously the idea of political equality that drives democratic value. It does not mean that constitutional juries would amount to elitists model, but the participatory model would be applied to ensure that power of the juries would be dispersed to reflect the face of the citizens in the nation. Hence, Gosh would argue that the issue of legal integrity would also be taken into consideration by selecting qualified juries able to read and interpret the constitution and propose amendments by taking into consideration the elements of ordinary law. Zurn also criticized the use of constitutional jury on the basis that its main function would be to protect the individual rights rather than dwelling on the general function of constitutional review. However, Gosh would respond to this criticism by arguing that a thorough constitutional review would only be possible by assuming that human beings are autonomous and disagree conscientiously on justice questions. In order to effectively review the constitution to reflect the opinions and views of the majority, then it would be prudent to recognize the autonomy of the people by taking into consideration the rights of the people. This would be possible by focusing mainly on the basic rights of the citizens. Gosh would argue that this would only be the basic step in the process of constitutional review and not the end to itself. Gosh’s response would be persuasive basing on the fact that Zurn proposed a combination of both the special court and civic constitutional court which is hard to integrate during the constitutional review process. The reason for this is that combining elitists with citizens selected at random would not blend the expertise required to enhance the constitutional review process. In conclusion, the focus of this paper has been to review the criticism presented by Zurn regarding the role of the judicial review, civic constitutional foras, and the constitutional juries in the constitutional review process. The other focus of this paper has been to present the response of Gosh towards the criticism presented by Zurn. It is evident that different platforms for constitutional review have advantaged and disadvantages which make them inappropriate to undertake constitutional review. References Ghosh, E. (2010). 'Deliberative Democracy and the Countermajoritarian Difficulty: Considering Constitutional Juries', Oxford Journal of Legal Studies 30(2): 327–59. Zurn. C. (2007). Judicial Review, Constitutional Juries and Civic Constitutional Fora: Rights, Democracy and Law. (Boston, University of Massachusetts). 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