Section 165 of the Constitution deals with judicial authority and states how judicial independence must be carried out. It expresses that the courts alone hold judicial authority and that they are subject only to the Constitution. It also explains that decisions made by the court must be unbiased and no other organ of state may interfere with decisions of the court. Section 165 also expresses that all decisions of the court must be followed by those whom it binds. The concept of independence of the judiciary can be seen in the De Lange vs Smuts case where members of the executive wanted to imprison a witness.
Yet he also says that the originalism readings will date the constitution and make it less relevant. This is all in the same vein as calling for an institution that protects the rights the people and limits the majoritarian aspects of democracy, so in an essence, creating a working constitutional democracy. I feel that the answer that Dworkin is searching for is the judicial branch. Waldron feels the same, noting the differences in Dworkin’s essay as well. Dworkin says that “legislature is not the safest vessel for protecting the rights of policy unpopular groups,” and this is where I can understand some point that he trying to make, because legislature is not the safest vessel for protecting minority groups, the judicial branch is.
Madison, declared the power of the courts to interpret the Constitution and affirmed the power of judicial review. The power of judicial review averted the judiciary branch of the inherent weakness and lack of equality in power among the three branches of government. The independence of the Supreme Court is paramount in protecting the civil liberties granted to citizens. The judicial power afforded by means of the doctrine of judicial review is not superior or above the other two branches of government. The Supreme Court’s duty is to nullify legislative acts contrary to the Constitution.
The rule of law as formulated by Raz adds little to a modern democracy as it could apply to both democratic and non-democratic states. The substantive rule of law is unworkable in a system such as exists in the United Kingdom, where the legislature is legally sovereign. Indeed, as both versions of the rule of law have been and could be ignored by the legislature, it is pointless to take the rule of law seriously as a feature of the United Kingdom’s constitution. Discuss the above statement and outline whether you agree or disagree with this. You must support your answer with reference to academic and judicial opinion, as well as developing your own argument.
Raz also states that “the principles of natural justice must be observed” and that “the courts should have review powers to ensure conformity of the law”, however, the formal theory shows no regard of “natural justice” as it is a theory concerned with the procedures followed and not the content of the law, so therefore there is weakness in Raz’s theory of the rule of law. Therefore the formal theory of the rule of law engenders to unjust situations which may be justified if good procedures are implemented when making the law. Nonetheless, Raz upholds the notion that the substantive theory is inadequate as
The debate over the legitimacy of the role of judicial review in the United States constitutional democracy has been around since the creation of the Constitution. The power of judicial review can be considered antidemocratic because it isn’t directly stated in the Constitution, of the authority of unelected judges and the fact that it sometimes resists the majority. Despite these claims, I believe judicial review is a constitutional doctrine, which arose from the historical process of persuasive reasoning in rulings, institutional prestige, the cooperation of political branches, and general public opinion. It is important to understand the classic debate of Yates v. Hamilton in order to comprehend the context of judicial review in American democracy. Robert Yates was an anti-federalist and judge of the New York Supreme Court who advocated that judicial review was not consistent with the spirit of democratic government.
This serves to support his argument that the intentions of the framers were and are today readily available. He believes that when one considers these facts, any attempt to futilize the clarity of the framers' intent is futile itself. Once Meece makes these particulars clear, he rationalizes his ideology of original intention. Meece quotes from Justice Marshall's opinion on Marbury v. Madison , "[I]t is apparent, that the framers of the Constitution contemplated that instrument as a rule for the government of the courts as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it?"
Our freedoms are not absolute, without limitations. Thus, when it comes to these freedoms, it is up to the Supreme Court to determine what the government can and cannot regulate. Because courts continually rule on what actions are constitutional and what is not, judicial interpretation shapes the nature of civil liberties. “I disapprove of what you say, but I will defend to the death your right to say it.” (Voltaire)
There are times when the correct constitutional reading of a challenged statute is explicit and uncontroversial. In these cases, it would be extremely harmful to the legitimacy of both the court and the constitution to rule in opposition to the uncontroversial reading. However, abundance of clarity leading to homogeneity of opinion is not the norm. In the majority of cases, justices must make choices about how to read the constitution, which precedents are most relevant, what principles to draw from those precedents, whether those precedents should be upheld or modified, when the arguments of dissenting opinions are more convincing than the majority, the natural meanings of words, and the parsing of punctuation. When faced with these questions about the application of the constitution, justices have further choices to make about how best to rule.
In addition, any lawsuit that their Parliament wishes to pass, must comply with the constitution. In certain predicaments those without this supreme law document have the ability to choose not to comply with laws that are transcribed in their constitution. An example being the allowance of passage for a new bill that does not fully comply with the New Zealand Bill of Rights Act 1990. In relation to normal stature more permanence is given to supreme legislation however, controversial legislation can be exceedingly difficult to pass, though not impossible. In parallel to the USA, New Zealand’s current constitution is neither supreme nor entrenched, a trait inherited from Great Britain.