Bob  says:
7 months ago

Whats the 4th admendment???

philipcfromnyc  says:
7 months ago

The concept of judicial review is limited to the judiciaries of a small handful of nations (the US and South Africa both come to mind). In the UK, high court judges enjoy considerable power -- however, their role is limited to that of interpreting laws passed by Parliament. In the USA, judges at the lowest level of the federal judiciary (judges sitting on the US District Courts, or Federal District Courts) have the power to examine laws and to declare them unconstitutional (and hence unenforceable) -- in other words, judges at the lowest level of the federal judiciary have the power to declare statutes to be unconstitutional. This power is not found in the judiciaries of many nations. The South African Constitutional Court has the same ability, and the South African high courts immediately beneath the Constitutional Court have the power to write such decisions, but these must then be certified by the Constitutional Court.

This power greatly enhances the role of the judiciary in the US. In _Marbury v. Madison_, 5 U.S. 137 (1803), Chief Justice Marshall wrote that "It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each... If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply."

This was not, as some social conservatives love to whine, a "power grab" or "usurpation of the will of the people". This was Marshall's interpretation of the role of the federal judiciary in a nation the constitution of which specifically insulates federal judges from the political process by granting them lifetime tenure and ensuring that their salaries may never be reduced during their lifetimes, conditional only on "good behavior" (interpreted by most people to mean that federal judges may only be removed from office by impeachment following the commission of serious crimes; judges may NOT be removed from office because of popular outrage over the content of their judgments).

It is this power that makes the federal courts in the US the bulwark that prevents overreaching by majorities. It is this power that enabled the US Supreme Court to hand down decisions such as _Brown v. Board of Education of Topeka_, 347 U.S. 483 (1954) (enforcing desegregation and abolishing forever the diseased concept of "separate but equal"). It is this power that enabled the US Supreme Court to hand down _Lawrence v. Texas_, 539 U.S. 558 (2003) (thus ending a shameful period in US history during which it remained criminal, in about 25 states in 1986, dropping to 14 states by 2003 when this decision was handed down, for consenting adult gay men and lesbians to have sex, even in the privacy of their own homes. Some states provided for the imprisonment of people convicted of same-sex "sodomy" (which included oral sex!) for as long as 20 years (this was the maximum penalty for consensual gay sex between adults in the State of Georgia)).

It is the power of judicial review that enabled the highest state court in Massachusetts (the Supreme Judicial Court of Massachusetts) to hand down its 2003 decision _Goodridge v. Department of Health_, thus legalizing gay marriage in that state (gay marriage is now also legal in Connecticut, Iowa, Vermont, and Maine; in three of these other four states, it took state supreme court decisions to accomplish this -- now, momentum is building for state legislatures in the New England states to pass gay marriage laws without being prompted to do so by state high courts).

Judicial review enables the US Supreme Court to give life and substance to the US Constitution, which was written more than 200 years ago, when there was no Internet, no air travel, no fax machines, no PCs or laptops, no ATM machines, no Medicaid or Medicare, no Social Security, etc. The courts are tasked with taking constitutional principles (e.g. the First Amendment guarantees of a free press and freedom of speech) and applying them to technological and social changes such as those created by the development of the Internet. Fortunately, the US Supreme Court wisely granted users of the Internet the same degree of First Amendment protection as is afforded printing presses and authors of books -- at a time when many people, using children as pawns and using legitimate fears of pedophilia to stir up support, tried to monopolize and all but destroy this incredible medium by passing laws prohibiting the publication of "indecent" material on the Internet (I refer to the so-called "Communications Decency Act" (CDA) that was passed in the mid-1990s and overturned by a conservative US Supreme Court (see _Reno v. American Civil Liberties Union_, 521 U.S. 844 (1997), in which case the US Supreme Court struck down the monstrous CDA and upheld the freedom of the Internet). (Yes, this does mean that Web sites will continue to generate and display pornography -- but it also means that we can write and publish articles and essays that may upset some people without being thrown into prison!) It was the ability of the US Supreme Court to engage in judicial review that permitted the Court to strike down the CDA as a facial violation of the First Amendment, thus preserving the Internet for us to use, even when our writings generate contention and discomfort.

So I, for one, am a staunch supporter of judicial review, and of an independent judiciary. I note that the first act of any new dictator is usually to gut the judiciary -- and I understand why a new dictator does this.

Sometimes, an independent judiciary with real power is all that stands between the people and totalitarianism.

PHILIP CHANDLER