American Politics Review
Is judicial review democratic? If so, under what circumstances?
Judicial review is the power to strike down and declare acts of Congress unconstitutional.
It is not specifically stated in Article III of the Constitution, but does that mean that it is
not implied? (And if not clearly in there, is it democratic?) Hamilton thought it was in
Federalist 78, and John Dickinson thought it was not. The framers rejected a ‘council of
revision’ three times, so probably not implicit. The power came from Marbury v.
Madison. President John Adams made a series of midnight appointments at the end of his
term, including Marbury’s as Justice of the Peace of D.C. They were signed and sealed,
but not delivered. The new Secretary of State, James Madison, refused to deliver them, so
Marbury sued under the Judiciary Act of 1789 which gave Congress the power to issue
‘writs of mandamus’ (basically a command) as part of its original and not appellate
jurisdiction. CJ John Marshall said that Madison was wrong to withhold appointments,
and the court could issue a writ, but the Judiciary Act which gave him original
jurisdiction was unconstitutional. So the Court doesn’t have the power to make him do it.
But he got an even bigger power. Is it democratic? An originalist would say that it is only
in narrow circumstances, and that the court should strike down plainly unconstitutional
laws and send them back. Originalists favor public accountability (like participatory
dem). They think that the Constitution has a fixed meaning and does not evolve.
Congress decides changes. New Process people say that it is always democratic and
necessary, and the courts should actively make policy, strike down and re-write. They
favor openness to minority factions. Court is a political institution, and Constitution is a
living document and inherently vague. Deliberative democracy-ists think it is sometimes
democratic, but more limited than New Process. The Court should supervise elected
branch deliberation, strike down and send back, not a policy maker. They value both
accountability and minority rights. The courts role is to make sure the process is fair, they
make other branches do their jobs. Their role is to supervise through either strict scrutiny,
if they don’t trust the officials based on past actions and they have to show that solutions
are tailored to the problem, or rational basis on most things. Democracy forcing
Presidential power: Are presidents too weak or too strong?
We have very high expectations of our president, and we often want him to perform
contradictory roles. Approval ratings are very affected by events, and the irony of
presidential influence is that his influence is strongest when his experience is the least.
His formal powers are granted in the “Take Care” clause- take care that laws are