Government Role Essay, Research Paper

I. Explain the distinction between substance and process and the importance of

the distinction for the issues discussed in this course. ?Over the past few

years?the court?holding that henceforth, before it can be determined that

you Are entitled to ?due process? at all, and thus necessarily before it can

be decided what process is ? due,? you must show that what you have been

deprived of amounts to a ?liberty interest? or perhaps a ?property

interest.? (Ely, p.19) Just as a skilled magician will deliberately show his

empty top hat to the audience right before he pulls a rabbit out by its ears, so

was judicial review pulled out of thin air. Judicial review has opened the

floodgates of substantive procedures in the courts, which refer to content based

decisions made by judges, as a tool employed in matters of judicial review and

has become the dominant means of legislating in areas which would not otherwise

be open to legal re-interpretation. In essence substance refers to the ability

and right of judges to employ their own values in rendering decisions concerning

a case at hand or in the past, reflecting a non-interpretivist approach to

legislating. Such decisions are grounded in the Substantive Due Process Clause

of the Fourteenth Amendment (a doctrine created by Justice Taney in the Dred

Scott case itself derived from the Fifth amendment), which ostensibly provides

citizens protection from the state governments. Substance also refers to

morality and decisions based on natural law as opposed to positivism. Process is

at the heart of democracy because it reflects the legitimate method by which a

community can enact laws in a system of representative democracy; to that end,

the principal virtue of a process oriented political system is its independence

of concurrent political, moral, or societal pressures. These issues are

obviously paramount in studying social reform and the role of the courts

(judges) as legislators or guardians of correct legislative practice. #2 Explain

Ely?s account of prejudice and the role it plays in his theory of judicial

review. ?So stereotypes, at least in the ordinary sense of that term, are the

inevitable stuff of legislation.?(Ely, p.156) Ely describes prejudice as a

?lens distorting reality,? that ?blinds us to overlapping interests which

in fact exist.? In reference to the treatment of minorities and blacks in

particular, prejudice in the legislative levels of government is the basis of

laws which put a minority group without adequate, if any representation or voice

at a disadvantage without reference to some worthy social goal and at the

judicial level implies a consensus of ?solicitude? among the judiciary

toward such ?discrete? and ?insular? groups within society. The other

type of prejudice involves ?suspicious classifications,? or stereotypes that

may disadvantage groups but still is within the boundaries of democracy; this

type of classification is considered harmful by Ely when we consider the

presence of undue stereotypes that are discovered in previous acts of

legislation. Ely asserts a more interperetivist approach although he concedes

the practical implausibility of such an approach because of the inability of the

constitution to forsee all possible situations. In the final analysis, Ely

thinks in a representative democracy laws should agree with those values which

are fundamental in the constitution (and surrounding historical documents) and

which obligates, without undue discrimination obligates all to obey, despite a

plurality of perspectives. Finally, Ely offers up that because matters of

racial, sexual, moral and other prejudices are essentially primae facia in terms

of what constitutes discrimination, a process-based model for the Supreme Court

would be optimal, the only difficult being hard cases. #3 Explain Dworkin?s

critique of Ely?s theory. ?In qny case, judicial review of the political

processes only polices democracy; it does not seek to override it as judicial

review of substance does?My point in this essay is that both ways end in

failure, and in the same sort of failure.? (Dworkin, p.34) Dworkin called

Ely?s Democracy and Distrust ?interesting? and he obviously saw some merit

in Ely?s claims; however, Dworkin analyzed Ely?s four main assertions and

accepted only the first (that judicial review should be concerned with process

legislation rather than the substantive decisions made by judges). Dworkin

disagreed with Ely on his second point, that processes should conform to a

specific model of democracy because, he argues, there is no universally accepted

conception (in the sense Rawls uses the word in A Theory of Justice, 1971).

Thirdly, Dworkin finds Ely?s contention untenable that process-based-review

agrees with democracy and is thus the judiciary?s proper function, namely

because it contradicts his arguments against the discovery of objective

fundamental values?necessary to a consistent code of process. Entailed in this

is the distinction Dworkin draws between input and outcome cases which aide in

rendering the best conception of democracyt. Lastly, Dworkin attacks Ely by

pointing to his claim that the courts err in making ?putatively? substantive

judgements (i.e. Lochner, Roe v. Wade) yet, simply, for Ely?s theory to work

substance-based decisions are necessary in bringing about the equality Ely

regards so highly. con, and substantive judicial review is a necessity in the

battle of the liberal to equalize the opposing forces in society (insofar as

opportunity is concerned) Dworkin?s analysis of Ely rests on their differing

conceptions of equality and the rule of law as the bases of democracy. #4

Explain Rosenberg?s view of the relative validity of the dynamic and

constrained court models. ??an examination of the direct effects of courts

in producing significant social reform, in the case of civil rights, shows that

the theoretical framework of the constraints and conditions successfully

explains the varying patterns of judicial efficacy. In contrast, neither view of

the Court alone, nor the existing paradigm of Brown as the symbol of judicial

efficacy, works very well?Courts can matter, but only sometimes, and only

under limited conditions.? (Rosenberg, p. 106) The dynamic court view espouses

a vigorous, active, and decisive role of judges and does not scorn decisions

that run contrary to mainstream belief and practice and it opposes the

constrained view which posits that the court?s role should be minor, passive,

and weak. Although black and white, the views nonetheless are not mutually

exclusive and according to Rosenberg actually depend on one another for their

validity. The contradiction here is that if both models are present in a given

situation, which was apparently true in Brown v. Board of Education, the

distinction becomes meaningless. The point Rosenberg makes is that the courts

are more or less always acting under the constrained model except when it makes

a controversial decision which has certain and major social implications.

However, Rosenberg also makes clear that only when the court has the active

support of other areas of government can the dynamic role be realized. Finally,

the interplay between the two views of the Court has the effect of sharply

limiting the functionality of either in gauging or constructing a coherent

conception of the Court?s role.