Judicial Review and the Legislative Process; Relevant?
The importance of judicial review is uncontested today. That the court system has a role in reviewing the actions of other governmental bodies and ensuring their constitutionality is imperative in the system of checks and balances between the three branches of government in the United States. The question remains, however, as to how far should this judicial power extend. When reviewing a piece of legislation, should the courts stop by merely deciding the constitutionality of the legal writing itself? Should it consider the intentions of the writers? The intention of the legislative voters?
When applying these questions to pieces of legislation that originate not with the legislators but rather with the public, the answers become even more elusive. In Judicial Approaches to Direct Democracy, the author disagrees with a judicial approach that argues “it is irrelevant that the voters rather than a legislative body enacted” a statute. The author further argues that treating both kinds of legislation the same is flawed because “it fails to recognize that the tasks of judicial review and statutory interpretation depend on assumptions about the legislative process” (2752). I argue that the judicial power to review the constitutionality of the law should be in place. However, this should be the only power that the judiciary should have when a case reaches its benches. A power, for example, it should not have, is the power to avoid the question of constitutionality and instead consider a different problem concerning the statute. The Judiciary, because of its undemocratic nature, should be limited – not in the way it makes its decisions but by the conflicts it decides to consider. In this regard, it seems, the judiciary has too much leeway that allows it to act in a way that causes public discontent and alienation. Worse of all, however, the courts betray their constitutional function.
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