Judicial Review, Variously Situated

I just read Jeremy Waldron's article The Core of the Case Against Judicial Review, so there may be a few judicial-review-themed posts in the next few days. Here's the first one. Fundamentally I think there are three practical questions regarding judicial review. First, should a nation like the United States, which possesses a tradition of relatively successful judicial review, abolish or weaken that institution? Second, should a nation like the United Kingdom, successful and prosperous with a tradition of legislative supremacy and no constitutional review, create the institution of judicial review? Finally, should a nation with no strong tradition any which way which is creating a new government for itself decide to include the institution of judicial review in that government? These are three very different questions, and there is in principle no inconsistency about thinking that the U.S. should retain judicial review and that Britain should not institute it.

First, the American case. The first thing to say is that there is no problem with American judicial review on democratic grounds. It was originally created by our federal Constitution, generally considered a democratic document, and the First Congress made it plain that it expected judicial review in the Supreme Court, lower federal courts, and state courts. Good old majoritarian Congress possesses nearly plenary power to attack and weaken judicial review, and through these powers could essentially destroy it; moreover, judicial review has almost constantly been under attack from certain quarters. Despite this, Congress has never made a generalized attack on judicial review. This suggests rather strongly that the people, or at least a majority of the people, have continued to support judicial review from 1789 through 2011. Moreover, without being required to do so by the federal Constitution, all fifty states have established a system of judicial review of state laws under the state constitution. If we take the view that unelected elites should not be second-guessing the majoritarian decisions of the people as to things like rights or government powers, then we must be prepared to conclude that we should not second-guess the people's decision to create judicial review for themselves. It's that simple.

Why do Americans seem to prize judicial review so much? That's also simple: it is the embodiment of the founding American idea, that of democratic government limited by a binding constitution. I think I'll address this in particular in a further post, but Waldron argues that, in a society that cares about rights and that disagrees about the content of rights, it should be a majoritarian, representative institution making decisions about rights. This strikes me as plainly false if the people not only care about rights but believe that government action intrusive of rights is not merely wrong but also illegitimate. Moreover, it just strikes me as deeply weird to suggest that, on the one hand, Constitutional commandments like "Congress shall make no law abridging the freedom of speech" are binding and, on the other hand, that an Act of Congress making criminal any criticism of the President or the party in control of the House of Representatives should be enforced by the courts.

Moreover, as to the American case specifically, we know that we have a culture of judicial review. We know that people do generally accept Supreme Court judgments as legitimate, even when they disagree with them and spend decades trying to get them reversed. (I know of two examples of this latter phenomenon, namely the civil rights litigation to get Plessy v. Ferguson overturned and the various strategies employed by the "pro-life" movement to get Roe v. Wade overturned. Of the two, I think one of them did and one of them does not treat the relevant precedent they oppose as a valid, binding interpretation of the supreme law of the land.) We know that everyone views the Supreme Court as a vital component of our checks-and-balances structure of government. We know that people like the courts far more than they like the President or Congress.

We also know that the United States of America has done rather well for itself over the past two-hundred and thirty years, with judicial review and the notion of limited constitutional government at its heart. This being the case, there would either need to be some kind of change in the nature or circumstances of judicial review, which made it appropriate then but inappropriate now, or seriously compelling argument that legislative supremacy would produce much better results than continued judicial review in order to persuade us to give up on this central notion of ours. I don't think Waldron makes that case, or anything like it: he suggests that the results-related considerations are roughly a wash, and maybe in his opinion slightly favor the legislative supremacy route. That fails to meet the burden of proof for supporting such a monumental change.

So now, as to the British case. I don't know as much about British public opinion on legislative supremacy, but my basic attitude is this: they've got a good thing going, and there's no particular reason to mess with it. Britain's success at fostering the "liberal" part of "liberal democracy," despite the lack of a constitutionally binding bill of rights, is remarkable and something they should be proud of, as proud as Americans should perhaps be of our innovation of the whole concept of limited, constitutional government with judicial review. If one started to observe that Parliament was routinely violating individual rights in pursuance of majoritarian desires, scarcely even addressing the question of whether they were violating crucial rights and never doing so in a particularly good-faith manner, then it might become time to wonder whether Britain could use some judicial review. I don't think that's happened; the Blair Ministry was mediocre on civil liberties, but no worse than the Bush Administration. Thus, I have no objection to the notion that Britain and other Commonwealth countries should, at least for now, retain their system of legislative supremacy (plus or minus international treaties allowing international courts to review actions of the British government).

There is one other thing to say about the British case, though: we shouldn't necessarily draw too much inference from it. Britain is weird. It's weird in a good way, but the fact remains that it is deeply unusual on matters of political and constitutional design. Because it is, as far as I know, the only nation which has never sat down at a table and asked, "what do I want my government to look like?", written out an answer, and enacted that answer into fundamental law. The government of the United Kingdom arose on an almost entirely ad hoc basis, and still bears quite a few features that derive from the fact that in early stages of that development we were dealing with government first and foremost by might. It is deeply impressive that such a nation has nonetheless developed into a rather ordinary-seeming functional democracy, and likewise impressive that its political system does manage to respect rights without binding constitutional review. That there is one such example, and that, because of the vastness of the British Empire and the lingering Britishness of the constitutional regimes in Commonwealth countries, it includes rather a lot of different "nations," does not necessarily mean we can expect such a vibrant political culture to exist or develop in general.

That brings us to the final case, the country which does not have any strong tradition in this area. The question is basically whether the system of legislative supremacy or the system of constitutionalism and review is to be preferred. The existence of the United Kingdom and the United States proves conclusively that a country can be made to work on the basis of either method. I am inclined to think, however (and Waldron admits this), that in a nation which does not already possess a strong commitment to democracy and individual rights, for instance one of the countries of the Arab Spring (should any of them be lucky enough to write a real democratic constitution for themselves), constitutionalism and review is much to be preferred. If the institution of judicial review can be made to stick, that is, if people can genuinely be made to accept that when the Court says a law is invalid that law is invalid (for practical purposes) and will not be enforced along the lines of Jackson's famous quote, then it provides the perfect solution to the Problem of Democracy (okay, one of them): suppose an anti-liberal anti-democratic faction, such as the Muslim Brotherhood, should win the election!

Under legislative supremacy, you're just screwed if that happens: that anti-democratic government will proceed to enact various laws infringing upon individual rights and hacking away at the structures of democracy (not unlike a certain ironically-named political party in our own nation), those laws will be enforced, including in court, and you won't have a liberal democracy anymore. Under constitutionalism and review, some sort of court would declare the offending laws invalid; under the assumption that judicial review has been made to stick, those laws will then not be put into practice, and everything's fine. In other words, judicial review provides the middle ground between the "ban them!" approach and the "uh oh, can't make democracy work here" approach. Let them be elected, we can safely say: the illiberal, anti-democratic things they wish to do are simply beyond the power even of the elected legislature.

Now, if this anti-democratic party is going to be winning lots of elections, by a genuine majority, over many years, ultimately this defense won't hold; if nothing else they'll just get to appoint the judges. Likewise, if the military decides to back the legislature over the court, you're just screwed. But if either a committed majority of the people over many years or the military do not actually want there to be a democracy, then there won't be a democracy: it's that simple. Constitutionalism and review provides a way for creating democracy when the military and a healthy majority of the people want democracy, but a sizeable and powerful minority of the people are opposed to it.

If there exists a nation with a political culture as healthy as England's, but which has not already taken a stand in the Great Judicial Review Debate, it might be appropriate for that nation to go with legislative supremacy. I doubt there is, and I would also note that quite a few European nations which had been quite hostile to judicial review previously decided in the aftermath of World War II to adopt it. Germany, for instance, appears to have decided not to trust in the healthy political culture of its polity, but rather to try and guard against any possible illnesses in that polity before they could become, well, Hitler. I'm not saying judicial review would necessarily have been able to stop Hitler, though perhaps it could have done the job, perhaps by invalidating the extension of the legislature's term. Among other things I don't know the historical details.

But I think the basic idea, of limited government legally bound by a constitution enforced through independent review of legislation, is a rather appealing one. It is the natural result, as my grandfather observed in The People and the Court, of the people's demonstrating their trustworthiness by declining to trust themselves. It is the embodiment of the idea that nothing should happen which the better part of the populace does not want, and some things should not even happen then. Personally I think I should recommend its adoption to an emerging democracy, or even to a country with a strong democratic culture that simply wanted to re-write its constitution. But ultimately I think it is just one of the many institutions which the people of any nation might have good reasons for wanting, and perhaps good reasons for not wanting, and which it is fine for them to want and fine for them not to want. Its opponents are right about one thing: if judicial review is undemocratic, it must go. It can only be a people's institution, created by the people for the people. If it is such an institution, then it can become something great and good.