American 2 Essay, Research Paper

In all democracies courts play some political role, but none has such formidable political power as the Supreme Court of the United States. As the final court of appeal, it has the power through judicial review to declare any action by any branch of government unconstitutional. This essay is going to examine whether the un-elected Supreme Court with the power of judicial review adds to, or is incompatible with democracy. However to understand why the Court was given, or indeed was allowed to have such far reaching power it is necessary to look at the political system of the US and how it originated.

[It] is the most wonderful work ever struck off at a given time by the brain and purpose of man (Maidment, 2000, p.3). This is how William Gladstone described the Constitution of the United States. The Constitution and later The Bill of Rights was conceived and formulated with one fundamental idea in mind and that was to prevent tyranny and the misuse of power. The main fear was that majority factions would, if not controlled threaten the rights of minorities Thus all individuals have natural rights to life, liberty and the pursuit of happiness. It must be noted that the framers of the Constitution (The Founding Fathers) did not share the values of modern day democracy; their perception of equality was more, white men, who were on the whole well educated, property owning middleclass.

One of the most important of the basic principles that guided the framers was the conviction that to stop power being abused it must be separated. Government was therefore separated into three branches, the executive (president), the legislature (congress) and the judiciary. A powerful executive suggest despotic and monarchic power, a to powerful legislature lead to the possibility of an insensitive majority. Therefore all braches must be relatively independent of each other. One-way to achieve this is by having them elected at different times, for different durations and by different procedures. The framers also concluded that there was a need for a built in set of checks and balances so that one branch could not encroach on the independence of any other branch. This was accomplished in various ways, such as; the President can veto legislation that as been passed by Congress, but that veto can be overridden by a 2/3 rd majority in both chambers of the legislature. Congress makes laws and provides funds for Presidential programs. Presidents appoint federal judges but the Senate has to approve the appointments. Courts can declare Congress laws and Presidential actions unconstitutional. One house of Congress balances and checks the other in that bills must pass both.

The idea of federalism was another way in which power might be dispersed; the framers thought that rather than have power solely in the hands of national government, the states ought to have a certain amount of autonomy, by electing their own executive, legislature and judiciary. In this way national and state government each have a certain amount of independence. This does not mean that various governments cannot influence the policies and practices of government at other levels; but it does mean that central government cannot ultimately control what state governments do, nor can state governments ultimately control what central government does. (Hodder-Williams, 2000, p.243-4)

Has as been mentioned one of the main checks to stop the misuse of power is the Supreme Courts capability to declare an act of Congress or a Presidential action unconstitutional, this also applies to any state law that comes before the court. The power of judicial review, gives the court an important role in the system of checks and balances. Although not explicitly granted in the Constitution, one of the framers Alexander Hamilton does point out that it is pointless having a Constitution if there is no one to interpret it. He also goes on to say that without the power to tax and spend and the means to enforce a judicial decision, this branch of government would always be kept in check by the other two branches.

The Court has claimed the right to judicial review in stages. The first landmark ruling was Marbury v Madison in 1803, when Chief Justice Marshall claimed the power to invalidate a federal law as unconstitutional, thus establishing the precedence of judicial review. Marshall in a later case declared that the Supreme Court must be flexible when interpreting the constitution, in other words if the Constitution is to endure over time it must be able to adapt to the needs of society. The implication of this is that the Court and not the Legislature will decide when the time is right for constitutional reinterpretation. As Chief Justice Hughes so aptly put it in later years, We are under a Constitution, but the Constitution is what the judges say it is . (McKeveer, 2000, p.128)

A period of constitutional upheaval happened in the years of the Great Depression when President Roosevelt came to office and Congress passed some far reaching economic legislation. However the Supreme Court (perhaps forgetting about the needs of society) struck down some of the major pieces of the New Deal legislation. Roosevelt s answer to this was to introduce new legislation that would allow him to appoint a new Justice, with full voting rights, to assist each of the existing Justices over the age of 70. This Court-packing plan would have greatly increased the power of the executive and weakened the power of the Court; consequently the Supreme Court found a way out of the impasse by recognising that the Constitution would have to be interpreted to allow more freedom for governments to determine economic policy.

Judicial activism, the views that the Supreme Court can and should creatively reinterpret the text of the Constitution. In other words they should take an active role if in their considered view there is inherent injustice within society. Perhaps when they feel that Federal and state government are failing to meet these needs. This is no better exemplified than in the case of Brown v Board of Education of Topeka (1954). After years of apathy by politicians, the National Association for the Advancement of Colored People petitioned the Supreme Court that racial segregation in state schools was unconstitutional. In an earlier ruling of 1896 the Court had said that they were separate but equal . By consulting the 14th Amendment, that includes due process and equal protection under the law, the Court of 1954 lead by Chief Justice Warren reversed that decision by a unanimous verdict. However with no enforcement powers and a political reluctance by both President and Congress, it would be many years before legislation would be introduced to enforce this and other racial injustices. So at one level it is possible to say that the un-elected Supreme Court was quite right to intervene in what was so obvious an injustice. To quote Justice Goldberg, it is just where, as a practical matter, the democratic political forum cannot adequately protect fundamental liberties that I have argued that the Court has a constitutional obligation to provide protection (McKeever, 2000, p.135). Yet on another level some of the other Warren reforms may appear more controversial such as, a ban on prayers in school, the limitations on the legislatures to censor pornography, and that within the Constitution text there was an unwritten right to privacy and thus a right to contraception.

The right to privacy was cited in an even more contentious way, when the pro-abortion lobby brought the case of Roe v Wade. Abortion, which up until 1973 had always been legislated for at states level and all states, placed strict guidelines on the termination of pregnancies by abortion. Because abortion can cause so much resentment and hostility the pro-choice activists bypassed the state and national legislatures and took their cause to the Supreme Court. By circumventing the democratic process, the activists hoped to get a quicker and more sympathetic hearing from judges who on the whole took a more liberal position on social issues. The judges upheld the claim that anti-abortion laws violated the right to privacy and this could be extended to abortion. This meant that abortion (which is not mentioned in the Constitution) has a direct link to the right to privacy (which is also not mentioned in the Constitution). Thus the complex and explosive issue of abortion was settled not by direct reference (or even indirect reference) to the Constitution, but rather through non-interpretive review, by consulting their personal values and beliefs and weaving them into the Constitutional. The states on this occasion did accept the verdict, but there was nothing in the ruling that said they had to provide facilities or funds and with no public funds for abortion the poor women in society have had very little benefit from the ruling.

In conclusion, judicial review can help defend individual freedoms under the Bill of Rights and 14th Amendment. There have been occasions when the Court as failed miserably to defend these freedoms. A notable example is the witch hunt by Senator Joseph McCarthy in the 1950s. However the presence of Judicial Review has usually been beneficial to individual freedoms, this is especially true of the 50s and 60s fight for civil rights and liberties. Perhaps also there is an implicit power of Judicial Review, the awareness by both executive and legislative branches that all decisions will be scrutinized for their constitutionality. At the same time there is a strong argument that the Court ought to show more judicial restraint particularly in moral and social dilemmas such as abortion, where unless there is a sound argument, democracy would be better served if the issue went through legislative channels. As Edwin Meese put it, The problem with this approach [non-interpretive review] is not that it is bad Constitutional law, but that it is not Constitutional law. (McKeever, 2000, p.136)

REFERENCE

Maidment, R, (2000) The United States in the Twentieth Century, Democracy, Hodder & Stoughton, London.

Hodder- Williams, (2000) The United States in the Twentieth Century, Democracy, Hodder & Stoughton, London.

McKeever, R, (2000) The United States in the Twentieth Century, Democracy, Hodder & Stoughton, London.