Compare And Contrast The Constitutionality Of Judicial Review

Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. A court with judicial review power may invalidate laws and decisions that are incompatible with a higher authority, such as the terms of a written constitution. Judicial review allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the constitution. The review is fundamental to the U.S. government. In the readings for this week, judicial review, its constitutionality, and its necessity were examined in several different context, largely in modern states like America, Canada, the U.K., and Australia. There were many international comparisons and questions raised, but the most

There is always a question of constitutionality itself and if it undermines the very idea of liberty, but there can be no doubt that in order to maintain liberty, there must be accurate and enforced provisions of the constitution. In fact, both authors writing on American judicial review examine and accept that in order for the most liberty to be maintained by the people an organization that limits the legislative powers must exist to ensure their basic rights. When reading Dworkin’s Freedom’s Law he discusses an institution that would hold the legislature accountable and look out for the rights of the people, hinting at, but never explicitly stating the courts power or judicial review. Waldron’s Law and Disagreement which also pairs nicely with Dworkin’s work, expounds on the same practices that Dworkin call into question. Reading though these two works and contemplating the overall significance of judicial review, I feel that even though the powers of judicial review are not explicitly stated in the constitution, this area is where the small c constitutionalism transcends the importance of the large C constitutionalism in efficiency of

The question on the constitutionality of having supreme court justices, who are appointed and not elected by the people, deciding on the constitutionality of laws and legislation is questionable. When the Marshall court handed down the Marbury v. Madison decision claiming the right to judicial review, everything changed, for better or worse. Dworkin’s writings attempt to reiterate what a democracy is and its purpose in serving the people. His statements are almost contradictory in that he says there is a need to avoid the moral reading of the constitution, for it gives too much power to the judges. Yet he also says that the originalism readings will date the constitution and make it less relevant. This is all in the same vein as calling for an institution that protects the rights the people and limits the majoritarian aspects of democracy, so in an essence, creating a working constitutional democracy. I feel that the answer that Dworkin is searching for is the judicial branch. Waldron feels the same, noting the differences in Dworkin’s essay as well. Dworkin says that “legislature is not the safest vessel for protecting the rights of policy unpopular groups,” and this is where I can understand some point that he trying to make, because legislature is not the safest vessel for protecting minority