Kathryn Kinas Democracy and the American Legal System 11 22 11 POSC 130 1 What is Judicial Review a The power of the courts to strike down acts of the other branches and levels of government as unconstitutional b Fundamental role of court c Can take many forms i thou shall not ii thou may iii thou must 2 Procedural definitions of Democracy Name Key Concept s Problems Direct democracy Citizens make laws directly Highly impractical on a large scale Incomplete definition elections matter Juries Representative Citizens elect lawmakers Incomplete definition Rights gov t by consent matter in a const democracy Majority rule Majority of voters decide Minority rights compromised cycling preferences failure to register intensity of preferences Any procedural definition Equates democracy with All procedures can be gained specific institutional arrangements and or decision making rules We can t set democracy to a set of institutional arrangements 3 Building a substantive definition a We need to build a definition around a set of core democratic values b One place to begin is the debate over ratification and Federalist 10 c Federalist 10 is about factions and the danger of the rise of factions in America or in today s language diversity and special interest groups d How does Madison define a faction i A faction is a group whether minority or majority that is united and motivated by a common interest or passion which is counter to the rights of others or the community interest 4 How can we deal with the mischief of factions a Eliminate its causes i It s impossible and undemocratic medicine would be worse than the disease b Remove its effects i Yes but it depends on type of faction 5 The Problems of Minority and Majority Factions a The problem of minority faction capture by a narrow interest Solution i Regularly scheduled elections b The problem of majority factions oppression of discrete insular minorities DIMs Possible solutions i Elections No by definition DIMs cannot vote the bums out ii Checks and balances Maybe but only parchment barriers Kathryn Kinas Democracy and the American Legal System 6 7 8 9 10 11 11 22 11 POSC 130 iii Create a large republic and force the resulting factions to build coalitions that can withstand diversely representative forums A working substantive definition of democracy a Democracy is a form of gov t that promotes the values of tolerance and accountability b As the accountability of gov t goes up the tolerance of minority rights also increases c Madisonian democracy is more steeper with the tolerance of minority rights is greater d Participatory democracy is lower with the accountability of gov t increasing faster than tolerance Working with the deliberative and participatory democracy a Does it advance democracy Participatory Deliberative Referendums Yes enhances No bypasses deliberation responsiveness to the among the elected electorate branches Superdelegates No potentially undermines Yes in cases where public voice primaries are not decisive encourages deliberation among diverse party interests Bork and the Legislative Supremacy Model a Public accountability of gov t b Is judicial review democratic i In narrow circumstances Only if the elected branches severely violate the constitution the Court has the right to step in c Proper use of judicial review i Strike down laws that violate rights clearly delineated in the constitution judicial restraint ii When in doubt let the elected branches fight it out Peretti and the separation of powers or New Process Model a Tolerance of minority rights b Judicial review is always democratic and essential c The proper use of judicial review is to actively make policy d Judicial activism in the context of an ongoing dialogue among diversely representative branches of gov t Sunstein and the Court Supervision Model a Both public accountability and tolerance preservation of minority rights b Judicial review is always democratic courts role should not be limited by narrow definition of the constitution c Proper use of judicial review i Supervise deliberation by elected branches ii Level of scrutiny varies depending on the likely quality of deliberation Deliberative democracy putting the pieces together a Inputs legislative process outputs b Courts always has a role in reviewing the outputs in light of the impartiality principle c Level of supervision depends on whether the Court should trust the legislative process i If so Courts should apply a deferential standard of review and ask whether the outputs have a rational basis Kathryn Kinas Democracy and the American Legal System 11 22 11 POSC 130 ii If not affects a historically oppressed group or involves a fundamental right Courts should apply strict scrutiny and ask whether the outputs have a compelling basis and are narrowly tailored thus the Court should send back and ask for explanation d Knowing that they must justify their actions ex ante elected branches will deliberate more carefully especially when naked preferences are likely to dominate the process 12 Competing Views Summarized Name Model type Bork Legislative Peretti Separation of Sunstein Court supremacy powers supervision Key value Public Accountability Tolerance of minority Both rights Proper role of judicial Strike down plainly Actively make policy Supervise legislative policymaking unconstitutional laws and executive deliberation 13 Judicial Policymaking asbestos and democracy Legislative supremacy Separation of powers Court supervision model model model Touchstone Judicial deference to Ongoing dialogue Quality of legislative the elected branches among diversely deliberation representative forums Appropriate Court No the Court should Yes Courts made Very close case behavior have read tort law policy and invited Congress unlikely to narrowly and left it to legislative response act but judicial action Congress and or the made legislative states response harder Courts had no other choice 14 Review Question a What is direct democracy Is the US legal system consistent with direct democracy b What is representative democracy Is the US legal system consistent with representative democracy c What definition of democracy is implicit in federalist 10 d Is judicial review democratic be able to discuss in general and specific terms cases