The case against Judicial Review

The Case Against Judicial Review

In order to make a case against judicial review it is first important to understand the origins. Born in 1803 out of the landmark United States Supreme Court decision of Marbury V. Madison, judicial review gives the court the power to invalidate any law repugnant (or in conflict with) to the constitution. Judicial review has for the courts, become a self made license to strike down legitimately made legislation by democratically elected representatives. It has been a tool to restrain laws that are in the bill stage by the threat that if the bill materializes into law then at its first challenge the court will strike it down.

In a democratically elected society it is important that all aspects be democratically controlled. Failure to do this will in all areas and aspects of the public sector undermine the very purpose of democracy. The doctrine of judicial review hurts the true spirit and purpose of the definition of democracy. Judicial review rejects the idea that elected representatives (executive & legislative plus state & federal) are capable of enacting their own laws in good faith. It precludes that legislators are also incapable to set for the people they serve, laws that will properly govern the people.

The first argument against judicial review, in summation, is the people or the population through their democratically elected leaders have the sole right to set forth their own laws. Judicial review yanks the democracy out of the hands of the people by not including the voice of the people in the policy change.

The second argument against judicial review is that it allows for an individual or a group with its own agenda to cau...

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.... In other words, the judge has the ability to accept or deny any judicial review question they want. This also brings in the question of a judge’s personal politics.

The personal politics of the judge has a major influence on what type of policy will result of the litigation or theory. The theory that becomes established with the outcome will have future and major impacts on life for many years to come. It is by this that the judge is and should be required to delay their personal politics and reject notions and requests for actions that result in judicial review.

In conclusion of the arguments against judicial review, it has led to a lot of controversy because of how it negates democracy. Judicial review gives little to no respect to the democratic process while justifying its actions as protecting the sanctity of the constitution.