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Judicial Review Notes

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Judicial Review Revision

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12. JUDICIAL REVIEW AND DEMOCRACY Preliminary points
 Whether JR of legislation is desirable — in a particular constitutional setting, or normatively (in the sense of preferring one constitutional setting over another) o If yes in normative sense — whether JR of legislation requires that
 Broad constitutional terms be enacted and read in a moral way; or
 General principles be extrapolated from specific provisions (as in France) or under the common law generally
 Scope of rights to be protected the subject of another substantial debate o Uncertainty in that argument sometimes treated as an answer to JR itself — will only serve to distort rights — therefore better to leave to flexible legislature o Some rights are in conflict — eg negative (liberty) v positive (socioeconomic) rights o Broad rights (property, free speech) v tempered rights (political communication, acquisition of property on just terms)
 "Watershed" social development moments insurance of minimum standards of liberty o Waldron often uses Roe v Wade on abortion, or legalisation of homosexuality as yardstick
 Mabo & Native Title? Better created by legislature but Keating himself said better to come from Courts — is this too far?
 South Korean court ruling criminalisation of adultery unconstitutional — 1953 Statute & 5th challenge — citing social change & reduction in prosecutions
 Courts not a multipurpose tool — eg Khmer Rouge trials as truth commission o Kable, or proceeds of crime, or incremental abrogation to jury trial
 Perhaps JR more suited to the latter?
Assumptions for arguments on either side —
Functioning society & institutions—
 Deliberative democratic legislature with universal adult suffrage and safeguards such as bicameralism (arguments do not apply with equal force to monarchies) o Problems with this majoritarian premise
 Independent & unelected judiciary, specifically trained or qualified &
immune from political influence — with judges who are conscious of legitimacy and of rights
 Community that is generally committed to rights & the common good, but who disagree about the appropriate scope of rights o Disagreement may only arise in particular case — judiciary has advantage of determining at that point

o Disagreement, even if general & principled, may not arise on particular low-profile but insidious legislation — judiciary has advantage of determining on motion of any citizen — in that way more democratic IE — question is which of two institutions should have determinative say on debates about appropriate scope of rights

Is judicial review a constitutional mechanism required only in societies where ordinary democratic functions are bound to fail?
 akin to or perhaps better remedied by supermajority / representation rules in Switzerland etc
 dysfunctional legislatures, corrupt political cultures, legacies of racism or prejudice Nature of judicial review
 JR of legislation of executive action o Executive necessarily circumscribed by higher power — but not necessarily so where derives authority directly from Constitution: Williams (No 1)
 Strongweak JR o Strong JR — refusal to apply, modification of meaning or striking down legislation o Weak JR — eg UK declarations of incompatibility triggering legislative reaction / NZ & Vic interpretive provisions (cf Momcilovic) o Canadian middle ground — Courts can strike down for inconsistency with Charter, unless legislation expressly overrides it (rarely does so)
 Waldron says only slightly insulates from argument from democracy — but would seem to make a considerable difference
 JR for rights JR for distribution of power (eg within federation / art 34&37 disputes in France) — necessary to have some arbiter but Waldron opposes this too o Surely some level of institutional JR inevitable — eg do legislatures have the power to abolish courts?
 Ex post ex ante review o Ex post creates problems with certainty ex ante lacks individual application & more prone to error
 Ordinary courts specialised constitutional court (eg France) ProcessOutcome/substance || Instrumentalnon-instrumental
 Raz prefers outcome-related reasons
 Methods of maximisation —
o Best outcome without sacrificing minimum of process o Best process without sacrificing minimum of outcome o Maximisation of the two
 Commonly suggested that instrumental arguments favour JR noninstrumental (process) arguments against — but both arguments cut both ways

Procedure —
 Waldron — Democracy, independent of its outcome — gives every vote equal weight
 Dworkin — procedure is appropriate method of making judgments about substance — procedures are assessed by their outcomes o Dworkin acknowledges that legislatures are guardians of the constitution too Substance — respect for fundamental rights
 Outcome/substance cannot be grounded in any particular political outlook —
but rather prefer structure that is more likely to give "good" result, whatever that might be
 Necessarily requires degree of sacrifice of democratic self-government —
democracy requires equal concern & respect for citizens and is something more than majority rule (majoritarian premise) o UK US — should majority via parliament determine the scope of those rights?
 Therefore decisions that deny fundamental rights are undemocratic as denying minimum level of concern & respect for minority, even if endorsed by majority: Dworkin
 Remains to consider which institution is most likely to meet those substantive and procedural ideals Chicken & Egg situation
 Procedure comes first — one man one vote is an absolute moral good, whereas fundamental rights require evaluative judgments — Utopian benevolent dictator would nonetheless be bad outcome o No empirical premise to suggest that democracy produces objectively "best" outcome in every case — some citizens hopelessly uninformed etc — but no means of agreeing on the appropriate procedure so adopt formal equality at the head of the stream o But procedure may not be an absolute good— premise is equal franchise, but no unanimity on that either — doesn't extend to children, prisoners, mentally ill, etc; compulsory voting; in the past to property owners, in UK to immigrants, members of Commonwealth, etc
 Substance must come first —
o Procedure argument is that—
 People are free when they do not submit to the will of another, but consider that they are part of the governing body
 Or more modestly — can be convinced to obey a law because of the process by which it was adopted rather than its substance o BUT — the reason we accept decisions based on process is because we accept we may be wrong — precisely because the majority disagrees with us
 Same characteristics of legislature give confidence in process and in outcome — artificial to divide up

If no doubt is left (eg in genocide situation), then process no longer makes legitimate — eg if group of terrorists use majority vote to determine what torture to use, not legitimised by allowing victim to vote
 Therefore arguments from substance must prevail o But if democratic legitimacy depends on substance —
 Dworkin — if majority votes for law infringing a right & that right is essential to legitimacy of system, then minority can ask for adjudication (by court or by legislature)
 But there is a disagreement about the scope & dispensability of the right — so depends on whether court gets the decision correct — can't judge outcomes but can judge process
 IE back to substance prevailing

Process-related / non-instrumental arguments Liberté — Conception of freedom
 People are free when they can participate in ruling body & are not ruled by external monarch or aristocracy o Judges can be equated to aristocracy
 Although legislatures also impose will of others on us
 And judges are appointed & given power by the Constitution which we enact and are free to amend o Therefore if majoritarian premise is overridden in a particular case or constitutional setting, it is a cost in freedom/liberty as compromises self-government
 Alternatively — self-government is recognising authority as a people to act on certain terms — includes giving role to a judiciary o Any conception of the State gives some role
 ME: not a meaningful definition of freedom — better reflected in secondary stage by scope of actual legislation — people who shackle themselves are nonetheless not free o If freedom is to be abstracted to the constitutional level, why not abstract it to the pre-constitutional level — people are always free to petition an amendment or stage a revolution
 Freedom under legislation, to conduct our affairs
 Freedom under the constitution, to govern as we please
 At large, to amend the constitution as we please
 This last point is the difference between tyranny or colonial rule and judicial supremacy — arguably a people cannot be free unless they have power at all levels
 We place limits on our own freedom at each level — by laws restricting conduct, by procedural & substantive limits on parliament, and in the manner of amendment (not by violence or revolution) o Freedom & liberty are relative and not absolute goods

Fraternité?
o JR of legislation can spark as much public debate about morality as legislative action — but different scope for individuals to engage &
influence

Egalité — Democracy is more than majoritarianism
 Ekins — Representation & Judicial Supremacy — JR is not the people ruling and so risks freedom o but is it necessary for a defence of JR to show that it is the people ruling? — or is there another ground for legitimacy?
o Dworkin — Court is interpreting whole of people through Constitution and guaranteeing rights thereunder
 Majoritarian premise — in ideal democracy every law will be approved of by majority of citizens, rationally acting and fully informed o Broader definition of democracy requires equal treatment —
middle ground between substantive and formal equality
 unqualified formal equality is not desirable in any other area —
why should it be so for governance
 EG if majoritarian concern foreclosed public office from certain races, no moral cost in sacrificing majoritarian democracy to extent required to avoid the substantive evil
 IE process alone cannot be conclusive
 Dworkin's "statistical""communal" collective action — decisions by majority actions by the (unitary) "people" (eg collective guilt, orchestra examples) o EG — if 60% of people want to spend money on parks & 40% on museums, should not spend all on parks o Unlikely example & may be good reason why no person voted for equal distribution — but illustrates difficulty with majorities of majorities making decisions
 Rubenfeld — self-government is by a 'people' not necessarily in the present but over a period of time Right to a hearing
 Right consists of o Opportunity to voice a grievance o Reasons for decision impinging on rights o Duty to reconsider initial decision giving rise to grievance
 Right to hearing valued independently of merits of decisions — on dignitarian basis
 "watchdog model" of judicial review — stopping legislature from overstepping bounds of fair legislative acts
 On one argument — nothing intrinsically judicial in procedures designed to protect a fair hearing o IE could argue this is just an instrumentalist view as well —
constitution should protect right to fair hearing, and JR achieves that purpose o IE could equally establish legislative review to perform this function

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