*** REQUIRED READING & BLOG COMMENTS ***
From your new handout today, read the article “The Democratic Character of Judicial Review” by Eugene Rostow, pp 291-295.
You will note Rostow’s employment of many of the vocabulary and concepts we have learned and discussed in class. Bring in your PK and build NK with it!
Read thoughtfully and post both clarification and thoughtful Qs or evaluations here. Due tonight.
This reading discusses the democratic nature of judicial review. Are Court rulings undemocratic?
For background, please have read Chapt 4 and see the “Judicial Review: Marbury v Madison and McCulloch v Maryland” slideshow post on the blog.
Don’t forget your Chapt 4 quiz Tues a.m.!
– Bromley
1. Since Supreme Court Justices serve for life, doesn’t that make it hard for the people to keep the constitution up to date with important social issues such as abortion or gay rights that are after the justices time? Wouldn’t a term limit fix this?
2. What does Rostow mean when he says “Man can be free because the state is not?” Doesn’t the federal government have about the same control over the state as the state does over the individual?
3. What does he mean by “verbal legalism”?
4. What causes the different degrees in the power of the court?
5. At what point to certain parts of the constitution “be submitted to no vote”?
Clarifications/Thoughtful Questions:
Why is judicial review undemocratic?
When Roster states that the survival of the power is that there are some phases of American Life which should be beyond the reach of any majority, does he refer to how power is divided amongst the government?
“The root idea of the Constitution is that man can be free because the state is not”, what is Rostow trying to say?
“But democracies need not elect all the officers who exercise crucial authority in the name of the voters.” So does Rostow suggest that there should not be a democratic system when it comes to electing all officials in power?
According to Rostow, does he think the supreme court has too much power?
Is Rostow being serious in the last paragraph on page 295 that legislature should have unlimited powers?
-Is judicial review undemocratic?
-Even though there is an established system of checks and balances, does one branch have more power over the others within the national government?
-What is a verbal legalism?
-When the verdict of a court case is seen as unfair, is the judge or the jury to blame?
-What is litigation?
Clarification/ Thoughtful Questions:
1. What is litigation?
2. Why is Hamilton’s statement considered “verbal legalism?”
3. Why does Rostow believe that some phases of American life should be beyond the reach of any majority?
4. Why do judges have so much power when in reality they don’t have any say in the court’s decision?
5. How does the constitutional review by the judiciary have an advantage thoroughly recognized in both theory and practice?
I like rostow saying that the courts do not get the power of the sword, or the power of the purse, I think that is so important as to why judicial review was given to the courts.
why does the public think that the courts make law?
I like how rostow says that individuals can challenge the entire government knowing that the court will make decision solely based on law.
why does the constitution not directly give the power of judicial review to the courts?
if the constitution were allowed to grow without a judicial check, that would lead to tyranny, and you might as well hang the constitution up in the Smithsonian as it would mean nothing.
What other powers does the judicial branch have in checking the other two branches?
What’s “verbal legalism”?
What happens when a statute or executive action declared unconstitutional?
What’s “stultification”?
Has judicial review ever been wrong?
How is Judicial review undemocratic?
Why wouldn’t limitation and separation of powers survive?
If courts were exercised by the states and courts exercise there intended powers, then wouldn’t the states have the power? Am i over thinking this, because i tend to do that.
Why does the Court’s powers have been exercised differently at different times? Would this make there judgement bias?
If the task of democracy is “to assure their (being the people) ultimate responsibility for the acts of their representatives” wouldn’t it be corrupt in a way because representatives don’t always do what the people want?
What is “stultification”?
What makes the United States a “polity” ?
When Rostow says ” The Supreme Courts self-searching often boils down to a debate within the bosoms of the Justices” what does he imply as there self searching goal? Why bosoms?
Would allowing the Constitution to evolve and grow without Judicial Check make our government illegitimate?
Is the Constitution really “perfectly competent” in todays day and age to handle the new host of issues?
How can a man be free if his state is not?
Stultification?
Who regulates the Federal Reserve Board other than courts?
Interesting class question: What makes democracy a slippery term?
1. Who dictates which “phases of American life” are beyond majority rule?
2. Is the minority really protected by the majority without being squashed out completely?
3. A man can only be free if his state is not. However, is it not the state that grants men freedom?
4. Is the “power of the people” still around today? Is this statement too idealistic? Do they hold any roles of superiority?
5. Should the original intention of the Constitution as dictated by the Founding Fathers even be considered when trying to interpret the document?
6. Can we ever reach a full democracy? Is it even possible in any society?
Clarification Questions
What is independent mediation?
What is stultification?
What is litigation?
Important Questions
Why must the judges “regulate their decisions by the fundamental laws, rather than by those which are not fundamental”? Is it because of the Constitution?
What if America had another method for enforcing the Constitution? What would that method be? How would it work? Why is it that no backup method has been developed?
If it was never written in the actual Constitution that it should have a Supreme Court let alone give it control of interpreting the Constitution in many of its most important aspects, Why was the Supreme Court made? Why was the Supreme Court given so much power, such as interpreting the Constitution?
Doesn’t the Supreme Court have too much power? It can interpret the Constitution and once your a Supreme Court judge you can never be fired, you can only resign, retire, etc. So isn’t that putting too much Constitutional power in the hands of nine people?
If the government had unlimited powers wouldn’t that still make it undemocratic? Since the government would be able to do whatever it wanted without having to listen to the internal efficacy of the people. The people still would not be voting directly and then nothing would be restricting the government from hindering our rights and freedoms.
Court rulings when there are no juries are undemocratic, but judges are an essential part of any society that wants to use democracy effectivly.
1. Snice majority rules in a democracy, then why is it acceptable for a small group of people to rule on the interpreation of laws?
2. Did the founders in the Constitution or the Marbury vs. Madison decision give the Supreme Court the right to deciede what is constitutional?
3. Can the citizens of the U.S.A. actually control the Supreme Court, if the justices are appointed for life by the executive and legislative branches?
4. How is citizens putting their faith in justices to uphold the law any different from the way the English ruled, other than having their leaders come from the colonies?
5. Once justices are appointed for life, how can they be coerced by the other branches?
Is it ironic that judicial review was a product of the flexibility of the constitution since their are justices like Justice Clarence who are in favor of a “strict” constitution.
What exactly was the purpose of the Judiciary Act of 1789?
How did the Supreme Court proceed before the establishment of judicial review?
Could the Court declare an amendment unconstitutional?
Should justices be party-affiliated or an example of a non-partisan entity that is able to interpret the law without bias?
1.) What has given society a contradictory view of the Supreme Court’s power?
2.) It is considered undemocratic if a judge ever made a wrong decision in any court case or not?
3.) Why is the forbidding of arbitrary powers a bigger role of the Convention on 1787 (according to Brandeis) than promoting efficiency?
4.) How did the Supreme Court find dividing powers to branches effective?
5.) Did all powers revolve around the Supreme Court before it was distributed?
1. What is the Supreme Court self searching for?
2. Are we as free as Rostow believes the Constitution should let us be?
3. What is verbal legalism?
4. How do we assure the responsibility of elected officials and representatives?
5. So considering all the requirements, is a democratic government in Rostow’s sense able to exist?
1. Who is to decide what is a free society, and how much “as much freedom as possible” is?
2. Would authority over discord be favored in a system that wants stability? Has the vagueness and insecurity of the constitution outlived itself?
3. If appointments are political, how is a supreme court justice supposed to remain impartial? Have we seen times when supreme court justices proved to be impartial?
4. Did Hamilton always want the judges to rule in a conservative manor? Rather, in a way that would alter laws in the least amount possible? Would we have seen a different outcome with DOMA if such logic was applied?
5. If we are to follow Justice Jackson’s words of: “… rights may not be submitted to vote; they depend on the outcome of no elections.” would we have even had a problem with prop 8 or marijuana?
I think that judicial review is a very justified process. We have people working to determine whether a case should be punished by the law under a certain type of circumstances. Because the judicial system interprets things differently over time, the judicial system provides a possibility of a living set of rules. The conditions of life are not the same as they were 10 years ago, and they aren’t the same as they were 1 year ago. If there was no judicial review, then the conditions would not be looked at. That being said, I do think there should be some ground rules, so people can not just make a decision based on their best interests.
I disagree when Rostow says that “The task of democracy is not to have the people vote directly on every issue, but to assure their ultimate responsibility for the acts of their representatives.” The people can not make a representative do something if it doesn’t want it to. Not all representatives are delegates. I think that the task of democracy is to have people have a say in every issue, which is where our country fails as a democracy. Democracy is rule by the people, and Rostow seems to not think that democratic values are necessarily people based, even to go so far as to say he will not make an effort at a formal definition.
Does the Constitution truly deliver to what the article says it is meant to do?
Why is the state considered. “not free?”
Why would a written Constitution promote discord rather than order in society?
Does this mean that the Federalist papers were somehow wrong in depicting the democracy and freedom within the Constitution?
Why has no other method of enforcing the Constitution developed?
Page 291 Question 1
Why is the idea that judicial review is undemocratic not an academic question but a philosophical one? Why does judicial review even need to be questioned or called out as undemocratic, it keeps the legislative branch and executive action on par with Constitution and does not allow the legislative and executive branches to abuse the Constitution and the judicial system ?
Page 292 Question 2
If there is no set formula for democracy, then is fair to say that this is so because complete democracy is an easily corruptible form of government destined to fail (evolve into tyranny) (similar to communism) and therefore a democratic statures need the structure of republicanism to fulfill the government’s duty of giving as much possible freedom to an individual. Is this why the Constitution is such a marvel, and if the America system has been, for the most part successful, why has it not been duplicated: Completely?
Page 293 Question 3
Who governs the judges when they make a decision that is contradictory to the Constitution (such as Citizen’s United)? Why do the people not have a say in objecting to legislation killed or approved by the Supreme Court (Voting Rights Act, Obamacare Citizen’s United)? Why do Supreme Court justices serve for life?
How can the people or the government identify whether the Supreme Court is being fair or not? Whether the judges are being honest and reasonable?
Which branch holds “most” power: the Judicial, the Executive or the Legislative branch?
What does Eugene mean by stating, “[t[hat the Constitution should be allowed to grow without a judicial check”? how is this undemocratic and an “attack” on judicial review?
Pg. 292
If an individual is hurt, possibly in a physical or mental way influenced under religious matters? And this individual asks for protection from the government. What are the rules that the government has to follow? Does this limit the power of all government?
How cases have courts dealt with that have conflicted justice with liberty (freedom of speech) as stated by the 1st amendment? How has the public responded to such cases?
The founding fathers are very Important in terms of the positive birth of the Constitution and the Independence of America. However, in present time America is facing dramatic change; socially, economically and culturally. Does it make sense to keep referring back to America’s founding fathers who lived in an America of more than 100 years ago? Is it fair to say that because America is advancing the constitution and the powers of the government should change to advance them more and position them is a balanced status that will fit in the modern society we live today?
How is it that there is a select group of people, appointed for a long time, who are the ones withe ultimate interpretation of law?
Would there not be some form of possible corruption with this system? Have there been reports of corruption?
By saying that “democracy is to assure that citizens assume the responsibility of their representatives”, does he infer that these judges are outliers as the general public does not work with constitutional review?
Are these judges really the core of maintaining a pluralist society?
How does the bill of attainder fit into this? (clarification)
How would the Const be protected if not for the judiciary? Is there really any other option?
Why didn’t they give the court power to begin with? In Federalist numero 78 explains it, so why isn’t it in the Const?
He argues that they are meant to regulate fundamental laws, but don’t they also get to decide what is fundamental?
Have the courts become less worried about overstepping their powers today?
He claims they are meant to mediate it, but doesn’t the constitution change as soon as it is interpreted however someone wants?
1. How is judicial undemocratic?
2. Has Supreme court ever went over its powers, or is there any limit to it?
3. Rostow believes that we should be free, but have we really been free? Free to do whatsoever we ought to do without the government stopping us, or is it just idealistic?
4. How does ruling in a conservative manor benefit the public and the government?
5. Does having much power in the court be a cause of a pluralistic society?