A provocation:
In grading your exams it occurred to me that quite a few of you argued both in favor of parliamentary representation--nominally because it embodied democratic principles--and yet also for the courts to oversee judicial review. Is there a tension here? It seems to me that in the case of the latter the democratic principles espoused in the former position are sacrificed in favor of an elitist structure of power. I mean, if we like democracy don't we have to trust the people enough as to allow them to decide upon questions of constitutionality? If not, why are we trusting them enough to elect our leaders who appoint those who decide upon a law's given constitutionality?
What do you think?
Remember to read closely the Anderson and the Hobsbawm for tomorrow. The Anderson is especially good I think.
Subscribe to:
Post Comments (Atom)
Hmm that is interesting. I do, however, have trouble comparing what is and is not constitutional with electing an official. Whether or not it was intended in its drafting, the constitution is open to interpretation. It is unrealistic to expect the public, in my view, to be so well versed on such a complex document. I mentioned this in my paper and I will repeat it here, I would be very fearful of the lobbying efforts that would take place in a vote of constitutionality. A recent example would be Proposition 8 and the contributions made by mormons to ensure its passing. Judicial review allows a non-partisan expertise analysis of the subject in question and the judges are historically not influenced by public opinion or lobbying efforts.
ReplyDeleteBen Foster
Although Ben makes a good point with the Prop 8 example, I think I have to agree with Alex's statement. I feel that the question was not to argue whether judicial review is helpful or not, rather if it is in conflict with the democratic principles represented by a parliamentary system.
ReplyDeleteAs we observed in lecture and various readings, a parliamentary system (arguably) represents the electorate better because it is a more direct form of democracy and is also more flexible to adhere to changing political landscapes. By contrast, strong judicial review functions as an oversight to the legislature- effectively undermining the will of the people, centralizing power and negating the spirit of a direct democracy.
Thus, the Prop 8 example above is indeed a fair one, but it is within the context of a pluralist presidential system where lobbying is absolutely necessary. From the perspective of our exam prompts, arguing in favor of parliament on the basis of promoting democratic principles is in conflict with also arguing for strong judicial review in order to take power away from the people.
Helaina Cleek
Helaina brings to light some great points. I cannot argue that judicial review contains a serious democratic deficit and I will quickly concede that point. I do, however, believe judicial review coincides with true democratic principles. A democracy is intended to to allow for the ruling, not the tyranny of the majority. Philosopher Ayn Rand writes about the tyranny of the majority, saying that individual rights should not be subject to a public vote. Like Ayn Rand, I think judicial power preserves democratic principles even though it admittedly contains a democratic deficit.
ReplyDeleteBen Foster