Should "judicial review" be abolished?

[A18]

Well?

With some reluctance, I say yes.

[Beet]

Who would perform the function of determining whether legislation is constitutional?

[I left.]

Who would perform the function of determining whether legislation is constitutional?

Me!!!

Seriously though....this is probably one of the most absurd suggestions I've heard in quite a while.

[A18]

Who would perform the function of determining whether legislation is constitutional?

Who determines it in the first instance (and often the final instance) now?

More to the point, what is the record of the courts in enforcing the Constitution? The document's clearest commands pertain to its structural features, and all of them have been gutted. It is only the Constitution's hopelessly-vague provisions—particularly those of the Bill of Rights, and of Section 1 of the Fourteenth Amendment—that judges have shown any great interest in. Notably, those guarantees have been used not in any principled manner, but to veto state laws that conflict with judge-specific notions of good policy.

Consider, moreover, the Supreme Court's decisions in Bowling v. Sharpe, 347 U.S. 497 (1954), and Reynolds v. Sims, 377 U.S. 533 (1964), each of which required it to completely ignore the obvious import of related clauses! If we have a least lawless branch, it is not the judiciary, but the legislature. (The executive will always be the most lawless.)

But ultimately, the most distressing fact is this: Judicial review allows a governing majority to push an agenda of radical reform, while simultaneously posing as moderates. Barack Obama can consistently proclaim his support for the death penalty, even as he appoints judges who will do everything in their power to secure its eventual abolition—by judicial fiat, of course (at least if need be). Whatever else may be said about such a system, it is neither democracy nor constitutionalism.

[Earth]

Whatever else may be said about such a system, it is neither democracy nor constitutionalism.

Because it's entirely dependent upon interpretation, or just plain recognition of previous decisions, how is abolishing judicial review going to help?

It sounds like you'd abolish the process of review simply because you're frustrated with the arbitrary nature of the actions of some judges. (Who isn't frustrated among us that don't agree with an outcome?)

[Beet]

Who would perform the function of determining whether legislation is constitutional?

Who determines it in the first instance (and often the final instance) now?

Lower level federal and state courts have final say in most case volume.

More to the point, what is the record of the courts in enforcing the Constitution? The document's clearest commands pertain to its structural features, and all of them have been gutted. It is only the Constitution's hopelessly-vague provisions—particularly those of the Bill of Rights, and of Section 1 of the Fourteenth Amendment—that judges have shown any great interest in. Notably, those guarantees have been used not in any principled manner, but to veto state laws that conflict with judge-specific notions of good policy.

Consider, moreover, the Supreme Court's decisions in Bowling v. Sharpe, 347 U.S. 497 (1954), and Reynolds v. Sims, 377 U.S. 533 (1964), each of which required it to completely ignore the obvious import of related clauses! If we have a least lawless branch, it is not the judiciary, but the legislature. (The executive will always be the most lawless.)

But ultimately, the most distressing fact is this: Judicial review allows a governing majority to push an agenda of radical reform, while simultaneously posing as moderates. Barack Obama can consistently proclaim his support for the death penalty, even as he appoints judges who will do everything in their power to secure its eventual abolition—by judicial fiat, of course (at least if need be). Whatever else may be said about such a system, it is neither democracy nor constitutionalism.

Well good thing it is not democracy, for we already have two democratic branches, and we need at least one branch that is separated by at least one degree from the whims of the majority.

Now, in a strictly "positive" sense it is true that since the Court is not particularly democratic so therefore purely from the point of its own self-interest as an institution, must be careful when wielding its power in a way that has significant policy consequences, particularly when it comes to policies that are politically explosive. For this reason I doubt the Court would move toward something like abolishing the death penalty, particularly if crime rates are as high as they have been for the last 30 years and the death penalty remains popular. There are no death penalty abolitionists on the Court today, unlike 20 years ago, and there are at least 4 strong conservative votes young enough to outlast 8 years of Obama. The Court is still more inclined to shift Right than Left, but if it is smart it will stay 'conservative', at least where hot-button political issues are concerned.

As for constitutionalism, that is potentially different. Note that a radical constitutional decision, one that say... departs significantly from previous legal doctrine to reach into relatively new and untraveled areas, and which has significant implications for a large number of future cases, does not necessarily have to have significant policy implications. On the other hand, a decision which merely applies a long-held legal principle to a new case could have earth-shattering policy implications. Generally it is the latter that will receive attention outside of academia, not the former, even though the former is "constitutionally" more radical.

And also it is true that our legal system is a social institution and like all social institutions it has evolved over time. And that the Constitution is not nearly long enough nor comprehensive nor sufficiently amendable as to embody the needs of fully describing a complex legal system for a modern, legalistic society of 300 million people. So the body interpreting it has developed a lengthy body of tradition and scholarship that at times bears little resemblance to the original document, if one was to attempt to jump straight from point A to point B.

But what would you replace the current system with? What alternative system can be guaranteed free of human error and subjectivity?

[Inks.LWC Supports Chuck Hagel]

No (normal).

[SPC]

Yes. States should be allowed to nullify unconstitutional laws.

[Secretary Polnut]

Absolutely not.

It is one of the fundamental protections against majority abuse of power. There should always be a fundamental objectivity to law. Judicial review protects against dictation by the majority.

[Sibboleth]

Never quite sure what to think about this issue, really. A limited amount of judicial review is probably a good thing, but where do you draw the line?

Judicial review protects against dictation by the majority.

...imposing, instead, dictation by unaccountable minorities...

[Senator Ben]

Voted yes, meant to vote no.

[SPC]

Judicial review protects against dictation by the majority.

...imposing, instead, dictation by unaccountable minorities...

*****

[Secretary Polnut]

Never quite sure what to think about this issue, really. A limited amount of judicial review is probably a good thing, but where do you draw the line?

Judicial review protects against dictation by the majority.

...imposing, instead, dictation by unaccountable minorities...

I think the risk of that is lesser in places where there isn't a direct connection between the judiciary and politics. I mean the idea of electing judges is horrific to me.

[Jeff from NC]

Who would perform the function of determining whether legislation is constitutional?

Who determines it in the first instance (and often the final instance) now?

More to the point, what is the record of the courts in enforcing the Constitution? The document's clearest commands pertain to its structural features, and all of them have been gutted.

To what exactly are you referring?

It is only the Constitution's hopelessly-vague provisions—particularly those of the Bill of Rights, and of Section 1 of the Fourteenth Amendment—that judges have shown any great interest in. Notably, those guarantees have been used not in any principled manner, but to veto state laws that conflict with judge-specific notions of good policy.

So you would look to the legislatures - who change membership every two years - for consistent principles instead?

But ultimately, the most distressing fact is this: Judicial review allows a governing majority to push an agenda of radical reform, while simultaneously posing as moderates. Barack Obama can consistently proclaim his support for the death penalty, even as he appoints judges who will do everything in their power to secure its eventual abolition—by judicial fiat, of course (at least if need be). Whatever else may be said about such a system, it is neither democracy nor constitutionalism.

I don't think the aim is for it to be democratic.  The courts were put in place to check democracy, not to purify it.

[President Marokai]

Who would perform the function of determining whether legislation is constitutional?

Seriously though....this is probably one of the most absurd suggestions I've heard in quite a while.

[frenger]

No.
What should be done is to find a way consistent with federalism to make the federal judiciary elected.

This is easy to do for district courts, but less easy for upper courts. I'd like to hear some suggestions.

[True Federalist]

I do think that if the Court is to be in the business of overturning laws established by the legislature, that a supermajority of 6 justices should be required, but other than that I have no problem with judicial review.

[I left.]

No.
What should be done is to find a way consistent with federalism to make the federal judiciary elected.

This is easy to do for district courts, but less easy for upper courts. I'd like to hear some suggestions.

So the interpretation of the law should be subject to popular opinion? Terrifying thought to me.

I know several states do it....and I dislike the practice quite strongly....but it seems even worse if I think about that happening at federal level.

[A18]

As opposed to the equally-subjective views of the political class?

[I left.]

As opposed to the equally-subjective views of the political class?

You can certainly argue about subjectivity....but I don't like the idea much of a judge having to worry about re-election and thereby base his opinions on what he thinks his "constituents" want to see him do.

[A18]

Your objection makes sense only if you presuppose that, in the absence of such influences, the judge would interpret the law more objectively. There is no warrant for that assumption.

BTW, judges seeking a promotion already care what their "constituents"—i.e., American presidents and the U.S. Senate—want them to do.