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Supreme Court In A Democracy

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Overview

The purpose of the following document is to support the creation of a Constitutional Tribunal in Poland. The judicial review of the American Supreme Court will be discussed as a model. This will show how judicial review can, and does work in one of the world's most stable constitutional democracies.

Marbury v. Madison

Judicial review is not explicitly in the Constitution. Rather, it had to be established, which was successfully accomplished through a single and otherwise (relatively) unimportant Supreme Court case. The case was Marbury v. Madison, 1 Cranch 137, 174 (1803). Chief Justice John Marshall wrote the opinion, thereby reshaping American democracy forever. President John Adams was distraught over the Federalist Party losing the presidential election of 1800. He decided to make several "midnight appointments" to the judiciary at the end of his term. This would allow the judiciary to stay predominantly Federalist, even if the legislature was not. The problem was that several of the commissions were never delivered to the appointed justices. One of these unfortunate appointees was William Marbury. He sued James Madison (the new Secretary of State) who refused to deliver the commission to Marbury. Under the Judiciary Act of 1789, the Supreme Court had the right to issue a writ of mandamus which would require Madison to hand the commission over to Marbury. Chief Justice John Marshall was a Federalist, and as a matter of political policy wanted to issue the writ of mandamus for the commission. However, he also understood that powers given in the Judiciary Act exceeded the powers given to the Supreme Court in Article III of the Constitution. He therefore declared that the Judiciary Act of 1789 was in conflict with the Constitution. Since the Constitution is the supreme law of the land, the Supreme Court declared its' right to issue writs of mandamus void. This ruling took away the Supreme Court's power to issue writs of mandamus, but created the significantly more important power to declare acts of congress void when they are in conflict with the Constitution.

Judicial review in America

Since the Marbury decision, the Supreme Court has overturned many acts of legislature. Some were mundane with little affect on most Americans, but occasionally the court hands down a decision with great impact on much of the citizenry. One fine example of this is when the Supreme Court declared a Kansas law allowing segregation in schools unconstitutional in Brown v. Board of Education, 344 U.S. 1 (1952). Other famous examples include Roe v. Wade, 410 U.S. 113 (1973), and Furman v. Georgia, 408 U.S. 238 (1972). These important decisions tend to deal with preventing tyranny of the majority by protecting the rights of the minority guaranteed to them through the Constitution. In this way, judicial review is the cornerstone of American democracy. The purpose of the Supreme Court has shifted to deal almost exclusively with cases regarding the constitutionality of laws. The major obvious fallacy of judicial review in the United States is that it is hard to find anything democratic about "nine unelected judges meeting in secret" determining that actions of the democratically elected legislature are void. This undemocratic part of judicial review is necessary though, as it is the only way for the Supreme Court to act freely to rule on cases based on the Constitution, rather than on the whims of the majority at any given time. This is because lifetime appointments allow justices to free themselves from worry of public opinion polls, elections. Judicial review is well accepted in the United States, as Supreme Court rulings are always obeyed, even though the Court does not have "power of the purse or the sword". This legitimacy upheld by the people is proof that the undemocratic problems are overridden by the people's desire to have such an institution, otherwise the public simply would not stand for it, and would force the legislature to amend the Supreme Court out of the Constitution, as the Court is the only branch which does not take part in the amendment process. I believe that most people support judicial review because it protects their rights from tyranny of the majority when they are in the minority.

Compatibility of judicial review and democracy

Democracy is best defined as "rule by the people." The people set up rules and laws, either through direct democracy (e.g. referenda), or through their elected representatives. This is all fine and good, but how can decisions be made when inevitable controversies in the law occur? It would seem absurd to have a national referendum, or a legislative bill to determine the outcome of every case involving a controversy in the law. In my opinion, the simplest and most practical solution is to decide these controversies is through a task force, committee, a Supreme Court, or in Poland's case, a Constitutional Tribunal who decides these cases. It would be detrimental to democracy if a small group declared itself to be the practicer of judicial review. However, if the people decide to devolve the power of judicial review to any group in order to foster quick decision making and proper rulings, then the judicial review is completely democratic. Since the United States Constitution is silent on the subject of whom, if anyone shall practice judicial review, it does not forbid the power from the court. The people (through 2/3 of both congressional houses and Ð'Ñ* of the states) have not amended the constitution to take the power of judicial review away from the Supreme Court. Thus, the people have affirmed that judicial review rests in the Supreme Court, and that is where the people want it. Since the people have made the conscious choice let judicial review rest in the hands of the Supreme Court, it is a completely democratic function of our government. If, however, the people amended the constitution to give judicial review to a different group, it would be undemocratic for the Supreme Court to continue to exercise this power.

Polish Constitutional Tribunal

In 1997, Poland adopted a Constitution. Article 8 states that "The

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