Judicial ReEngineering by The Advocacy Foundation, Inc.

The e-Advocate Quarterly Magazine Exodus 18 | Deuteronomy 1 | Ezra 7

Judicial ReEngineering Universal Legal Systems Analysis

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Vol. IX, Issue XXXVII – Q-2 April | May | June 2023

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Judicial ReEngineering Universal Legal Systems Analysis

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Biblical Authority Exodus 18 ______ Jethro Visits Moses 1 Now Jethro, the priest of Midian and father-in-law of Moses, heard of everything God had done for Moses and for his people Israel, and how the LORD had brought Israel out of Egypt. 2 After Moses had sent away his wife Zipporah, his father-in-law Jethro received her 3 and her two sons. One son was named Gershom, for Moses said, "I have become an alien in a foreign land"; 4 and the other was named Eliezer, for he said, "My father's God was my helper; he saved me from the sword of Pharaoh." 5 Jethro, Moses' father-in-law, together with Moses' sons and wife, came to him in the desert, where he was camped near the mountain of God. 6 Jethro had sent word to him, "I, your father-inlaw Jethro, am coming to you with your wife and her two sons." 7 So Moses went out to meet his father-in-law and bowed down and kissed him. They greeted each other and then went into the tent. 8 Moses told his father-in-law about everything the LORD had done to Pharaoh and the Egyptians for Israel's sake and about all the hardships they had met along the way and how the LORD had saved them. 9 Jethro was delighted to hear about all the good things the LORD had done for Israel in rescuing them from the hand of the Egyptians. 10 He said, "Praise be to the LORD, who rescued you from the hand of the Egyptians and of Pharaoh, and who rescued the people from the hand of the Egyptians. 11 Now I know that the LORD is greater than all other gods, for he did this to those who had treated Israel arrogantly." 12 Then Jethro, Moses' father-in-law, brought a burnt offering and other sacrifices to God, and Aaron came with all the elders of Israel to eat bread with Moses' father-in-law in the presence of God. 13 The next day Moses took his seat to serve as judge for the people, and they stood around him from morning till evening. 14 When his fatherin-law saw all that Moses was doing for the people, he said, "What is this you are doing for the people? Why do you alone sit as judge, while all these people stand around you from morning till evening?" 15 Moses answered him, "Because the people come to me to seek God's will. 16 Whenever they have a dispute, it is brought to me, and I decide between the parties and inform them of God's decrees and laws." 17 Moses' father-in-law replied, "What you are doing is not good. 18 You and these people who come to you will only wear yourselves out. The work is too heavy for you; you cannot handle it alone. 19 Listen now to me and I will give you some advice, and may God be with you. You must be the people's representative before God and bring their disputes to him. 20 Teach them the decrees and laws, and show them the way to live and the duties they are to perform. 21 But select capable men from all the people--men who fear God, trustworthy men who hate dishonest gain--and appoint them as officials over thousands, hundreds, fifties and tens. 22 Have them serve as judges for the people at all times, but have them bring every difficult case to you; the simple cases they can decide themselves. That will make your load lighter, because they will share it with you. 23 If you do this and God so commands, you will be able to stand the strain, and all these people will go home satisfied." 24 Moses listened to his father-in-law and did everything he said. 25 He chose capable men from all Israel and made them leaders of the people, officials over thousands, hundreds, fifties and tens. 26 They served as judges for the people at all times. The difficult cases they brought to Moses, but the simple ones they decided themselves. 27 Then Moses sent his fatherin-law on his way, and Jethro returned to his own country.

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Deuteronomy 1 The Command to Leave Horeb 1 These are the words Moses spoke to all Israel in the desert east of the Jordan--that is, in the Arabah--opposite Suph, between Paran and Tophel, Laban, Hazeroth and Dizahab. 2 (It takes eleven days to go from Horeb to Kadesh Barnea by the Mount Seir road.) 3 In the fortieth year, on the first day of the eleventh month, Moses proclaimed to the Israelites all that the LORD had commanded him concerning them. 4 This was after he had defeated Sihon king of the Amorites, who reigned in Heshbon, and at Edrei had defeated Og king of Bashan, who reigned in Ashtaroth. 5 East of the Jordan in the territory of Moab, Moses began to expound this law, saying: 6 The LORD our God said to us at Horeb, "You have stayed long enough at this mountain. 7 Break camp and advance into the hill country of the Amorites; go to all the neighboring peoples in the Arabah, in the mountains, in the western foothills, in the Negev and along the coast, to the land of the Canaanites and to Lebanon, as far as the great river, the Euphrates. 8 See, I have given you this land. Go in and take possession of the land that the LORD swore he would give to your fathers--to Abraham, Isaac and Jacob--and to their descendants after them."

The Appointment of Leaders 9 At that time I said to you, "You are too heavy a burden for me to carry alone. 10 The LORD your God has increased your numbers so that today you are as many as the stars in the sky. 11 May the LORD, the God of your fathers, increase you a thousand times and bless you as he has promised! 12 But how can I bear your problems and your burdens and your disputes all by myself ? 13 Choose some wise, understanding and respected men from each of your tribes, and I will set them over you." 14 You answered me, "What you propose to do is good." 15 So I took the leading men of your tribes, wise and respected men, and appointed them to have authority over you--as commanders of thousands, of hundreds, of fifties and of tens and as tribal officials. 16 And I charged your judges at that time: Hear the disputes between your brothers and judge fairly, whether the case is between brother Israelites or between one of them and an alien. 17 Do not show partiality in judging; hear both small and great alike. Do not be afraid of any man, for judgment belongs to God. Bring me any case too hard for you, and I will hear it. 18 And at that time I told you everything you were to do.

Spies Sent Out 19 Then, as the LORD our God commanded us, we set out from Horeb and went toward the hill country of the Amorites through all that vast and dreadful desert that you have seen, and so we reached Kadesh Barnea. 20 Then I said to you, "You have reached the hill country of the Amorites, which the LORD our God is giving us. 21 See, the LORD your God has given you the land. Go up and take possession of it as the LORD, the God of your fathers, told you. Do not be afraid; do not be discouraged." 22 Then all of you came to me and said, "Let us send men ahead to spy out the land for us and bring back a report about the route we are to take and the towns we will come to." 23 The idea seemed good to me; so I selected twelve of you, one man from each tribe. 24 They left and went up into the hill country, and came to the Valley of Eshcol and explored it. 25 Taking with them some of the fruit of the land, they brought it down to us and reported, "It is a good land that the LORD our God is giving us."

Rebellion Against the LORD 26 But you were unwilling to go up; you rebelled against the command of the LORD your God. 27 You grumbled in your tents and said, "The LORD hates us; so he brought us out of Egypt to deliver us into the hands of the Amorites to destroy us. 28 Where can we go? Our brothers have made us lose heart. They say, 'The people are stronger and taller than we are; the cities are large, with walls up to the sky. We even saw the Anakites there.' " 29 Then I said to you, "Do not be terrified; do not be afraid of them. 30 The LORD your God, who is going before you, will fight for you, as he did for you in Egypt, before your very eyes, 31 and in the desert. There you saw how the LORD your God carried you, as a father carries his son, all the way you went until you reached this place." 32 In spite of this, you did not trust in the LORD your God, 33 who went ahead of you on your journey, in fire by night and in a cloud by day, to search out places for you to camp and to show you the way you should go. 34 When the LORD heard what you said, he was angry and solemnly swore: 35 "Not a man of this evil generation shall see the good land I swore to give your Page 5 of 115

forefathers, 36 except Caleb son of Jephunneh. He will see it, and I will give him and his descendants the land he set his feet on, because he followed the LORD wholeheartedly." 37 Because of you the LORD became angry with me also and said, "You shall not enter it, either. 38 But your assistant, Joshua son of Nun, will enter it. Encourage him, because he will lead Israel to inherit it. 39 And the little ones that you said would be taken captive, your children who do not yet know good from bad--they will enter the land. I will give it to them and they will take possession of it. 40 But as for you, turn around and set out toward the desert along the route to the Red Sea." 41 Then you replied, "We have sinned against the LORD. We will go up and fight, as the LORD our God commanded us." So every one of you put on his weapons, thinking it easy to go up into the hill country. 42 But the LORD said to me, "Tell them, 'Do not go up and fight, because I will not be with you. You will be defeated by your enemies.' " 43 So I told you, but you would not listen. You rebelled against the LORD's command and in your arrogance you marched up into the hill country. 44 The Amorites who lived in those hills came out against you; they chased you like a swarm of bees and beat you down from Seir all the way to Hormah. 45 You came back and wept before the LORD, but he paid no attention to your weeping and turned a deaf ear to you. 46 And so you stayed in Kadesh many days--all the time you spent there.

Ezra 7 Ezra Comes to Jerusalem 1 After these things, during the reign of Artaxerxes king of Persia, Ezra son of Seraiah, the son of Azariah, the son of Hilkiah, 2 the son of Shallum, the son of Zadok, the son of Ahitub, 3 the son of Amariah, the son of Azariah, the son of Meraioth, 4 the son of Zerahiah, the son of Uzzi, the son of Bukki, 5 the son of Abishua, the son of Phinehas, the son of Eleazar, the son of Aaron the chief priest-- 6 this Ezra came up from Babylon. He was a teacher well versed in the Law of Moses, which the LORD, the God of Israel, had given. The king had granted him everything he asked, for the hand of the LORD his God was on him. 7 Some of the Israelites, including priests, Levites, singers, gatekeepers and temple servants, also came up to Jerusalem in the seventh year of King Artaxerxes. 8 Ezra arrived in Jerusalem in the fifth month of the seventh year of the king. 9 He had begun his journey from Babylon on the first day of the first month, and he arrived in Jerusalem on the first day of the fifth month, for the gracious hand of his God was on him. 10 For Ezra had devoted himself to the study and observance of the Law of the LORD, and to teaching its decrees and laws in Israel.

King Artaxerxes' Letter to Ezra 11 This is a copy of the letter King Artaxerxes had given to Ezra the priest and teacher, a man learned in matters concerning the commands and decrees of the LORD for Israel: 12 Artaxerxes, king of kings, To Ezra the priest, a teacher of the Law of the God of heaven: Greetings. 13 Now I decree that any of the Israelites in my kingdom, including priests and Levites, who wish to go to Jerusalem with you, may go. 14 You are sent by the king and his seven advisers to inquire about Judah and Jerusalem with regard to the Law of your God, which is in your hand. 15 Moreover, you are to take with you the silver and gold that the king and his advisers have freely given to the God of Israel, whose dwelling is in Jerusalem, 16 together with all the silver and gold you may obtain from the province of Babylon, as well as the freewill offerings of the people and priests for the temple of their God in Jerusalem. 17 With this money be sure to buy bulls, rams and male lambs, together with their grain offerings and drink offerings, and sacrifice them on the altar of the temple of your God in Jerusalem. 18 You and your brother Jews may then do whatever seems best with the rest of the silver and gold, in accordance with the will of your God. 19 Deliver to the God of Jerusalem all the articles entrusted to you for worship in the temple of your God. 20 And anything else needed for the temple of your God that you may have occasion to supply, you may provide from the royal treasury. 21 Now I, King Artaxerxes, order all the treasurers of Trans-Euphrates to provide with diligence whatever Ezra the priest, a teacher of the Law of the God of heaven, may ask of you-- 22 up to a hundred talents of silver, a hundred cors of wheat, a hundred baths of wine, a hundred baths of olive oil, and salt without limit. 23 Whatever the God of heaven has prescribed, let it be done with diligence for the temple of the God of heaven. Why should there be wrath against the realm of the king and of his sons? 24 You are also to know that you have no authority to impose taxes, tribute or duty on any of the priests, Levites, singers, gatekeepers, temple servants or other workers at this house of God. 25 And you, Ezra, in accordance with the wisdom of your God, which you possess, appoint magistrates and judges to administer justice to all the people of Trans-Euphrates--all who know the laws of your God. And you are to teach any who do not know them. 26 Whoever does not obey the law of your God and the law of the king must surely be punished by death, banishment, confiscation of property, or imprisonment. 27 Praise be to the LORD, the God of our fathers, who has put it into the king's heart to bring honor to the house of the LORD in Jerusalem in this way 28 and who has extended his good favor to me before the king and his advisers and all the king's powerful officials. Because the hand of the LORD my God was on me, I took courage and gathered leading men from Israel to go up with me. Page 6 of 115

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Table of Contents Judicial ReEngineering – Universal Legal Systems Analysis

Biblical Authority I.

Introduction

II.

The Judiciary

III.

Judicial Independence

IV.

Judicial Review

Rule of Law

VI.

Rule of Higher Law

VII. Political Corruption of the Judiciary VIII. Conflicts of Interest IX.

Judicial Activism

Attachments A. The Role of Judicial Activism B. Selective Judicial Activism C. Proper Judicial Activism

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Introduction Judicial Reform is the complete or partial political reform of a country's judiciary. Judicial reform is often done as a part of wider reform of the country's political system or a legal reform. Areas of the judicial reform often include; codification of law instead of common law, moving from an inquisitorial system to an adversarial system, establishing stronger judicial independence with judicial councils or changes to appointment procedure, establishing mandatory retirement age for judges or enhancing independence of prosecution. The Judiciary (also known as the Judicial System or Court System) is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make law (that is, in a plenary fashion, which is the responsibility of the legislature) or enforce law (which is the responsibility of the executive), but rather interprets law and applies it to the facts of each case. This branch of the state is often tasked with ensuring equal justice under law. It usually consists of a court of final appeal (called the "Supreme court" or "Constitutional court"), together with lower courts. In many jurisdictions the judicial branch has the power to change laws through the process of judicial review. Courts with judicial review power may annul the laws and rules of the state when it finds them incompatible with a higher norm, such as primary legislation, the provisions of the constitution or international law. Judges constitute a critical force for interpretation and implementation of a constitution, thus de facto in common law countries creating the body of constitutional law. In the US during recent decades the judiciary became active in economic issues related with economic rights established by constitution because "economics may provide insight into questions that bear on the proper legal interpretation". Since many countries with transitional political and economic systems continue treating their constitutions as abstract legal documents disengaged from the economic policy of the state, practice of judicial review of economic acts of executive and legislative branches have begun to grow. In the 1980s, the Supreme Court of India for almost a decade had been encouraging public interest litigation on behalf of the poor and oppressed by using a very broad interpretation of several articles of the Indian Constitution. Budget of the judiciary in many transitional and developing countries is almost completely controlled by the executive. The latter undermines the separation of powers, as it creates a Page 10 of 115

critical financial dependence of the judiciary. The proper national wealth distribution including the government spending on the judiciary is subject of the constitutional economics. It is important to distinguish between the two methods of corruption of the judiciary: the state (through budget planning and various privileges), and the private. The term "judiciary" is also used to refer collectively to the personnel, such as judges, magistrates and other adjudicators, who form the core of a judiciary (sometimes referred to as a "bench"), as well as the staffs who keep the system running smoothly. After The Revolution After the French Revolution, lawmakers stopped interpretation of law by judges, and the legislature was the only body permitted to interpret the law; this prohibition was later overturned by the Code NapolĂŠon. In civil law jurisdictions at present, judges interpret the law to about the same extent as in common law jurisdictions â&#x20AC;&#x201C; however it is different from the common law tradition which directly recognizes the limited power to make law. For instance, in France, the jurisprudence constante of the Court of Cassation or the Council of State is equivalent in practice with case law. However, the Louisiana Supreme Court notes the principal difference between the two legal doctrines: a single court decision can provide sufficient foundation for the common law doctrine of stare decisis, however, "a series of adjudicated cases, all in accord, form the basis for jurisprudence constante." Moreover, the Louisiana Court of Appeals has explicitly noted that jurisprudence constante is merely a secondary source of law, which cannot be authoritative and does not rise to the level of stare decisis.

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The Judiciary In common law jurisdictions, courts interpret law, including constitutions, statutes, and regulations. They also make law (but in a limited sense, limited to the facts of particular cases) based upon prior case law in areas where the legislature has not made law. For instance, the tort of negligence is not derived from statute law in most common law jurisdictions. The term common law refers to this kind of law. In civil law jurisdictions, courts interpret the law, but are prohibited from creating law, and thus do not issue rulings more general than the actual case to be judged. Jurisprudence plays a similar role to case law. In the United States court system, the Supreme Court is the final authority on the interpretation of the federal Constitution and all statutes and regulations created pursuant to it, as well as the constitutionality of the various state laws; in the US federal court system, federal cases are tried in trial courts, known as the US district courts, followed by appellate courts and then the Supreme Court. State courts, which try 98% of litigation, may have different names and organization; trial courts may be called "courts of common plea", appellate courts "superior courts" or "commonwealth courts". The judicial system, whether state or federal, begins with a court of first instance, is appealed to an appellate court, and then ends at the court of last resort. In France, the final authority on the interpretation of the law is the Council of State for administrative cases, and the Court of Cassation for civil and criminal cases. In the People's Republic of China, the final authority on the interpretation of the law is the National People's Congress. Other countries such as Argentina have mixed systems that include lower courts, appeals courts, a cassation court (for criminal law) and a Supreme Court. In this system the Supreme Court is always the final authority, but criminal cases have four stages, one more than civil law does. On the court sits a total of nine justices. This number has been changed several times. Other Countries Japanâ&#x20AC;&#x2122;s process for selecting Judges is longer and more stringent than the process in the United States and in Mexico. Assistant judges are appointed from those who have completed their training at the "Legal Training and Research Institute" located in Wako City. Once appointeid, assistant judges still may not qualify to sit alone until they have served for five years, and have been appointed by the Supreme Court. Judges require ten years of experience in practical affairs, Page 13 of 115

public prosecutor, or practicing attorney. In the Japanese Judicial Branch there is the Supreme Court located in Japan, eight high courts, fifty district courts, fifty family courts, and 438 summary courts. In difference, Mexican Supreme Court Justices are appointed by the president, and then are approved by the Senate to serve for a life term. Other justices are appointed by the Supreme Court and serve for six years. Federal courts consist of the Supreme Court with 21 magistrates, 32 circuit tribunals and 98 district courts. The Supreme Court of Mexico is located in "Mexico City. Supreme Court Judges must be of ages 35 to 65 and hold a law degree during the five years preceding their nomination. In the United States Supreme Court, justices are appointed by the president and approved by the Senate. As in Mexico, justices serve for a life term or until retirement. The Supreme Court of the United States is located in "Washington D.C". The Federal court system consists of 94 federal judicial districts. The 94 districts are then divided into twelve regional circuits. The United States consist of five different types of courts that are considered subordinate to the Supreme Court, U.S bankruptcy courts, U.S Courts of Appeal for the federal circuit, U.S Court of International Trade, U.S Courts of Appeal, and U.S District Courts.

The Supreme Court [The] supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, apex court, and highest court of appeal. Broadly speaking, the decisions of a supreme court are not subject to further review by any other court. Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts. However, not all highest courts are named as such. Civil law states do not tend to have singular highest courts. Additionally, the highest court in some jurisdictions is not named the "Supreme Court", for example, the High Court of Australia; this is because decisions by the High Court could formerly be appealed to the Privy Council. In a few places, the court named the "Supreme Court" is not in fact the highest court; examples include the New York Supreme Court, which is superseded by the New York Court of Appeals, and the former Supreme Court of Judicature of England and Wales. Some countries have multiple "supreme courts" whose respective jurisdictions have different geographical extents, or which are restricted to particular areas of law. In particular, countries with a federal system of government typically have both a federal supreme court (such as the Supreme Court of the United States), and supreme courts for each member state (such as the Supreme Court of Nevada), with the former having jurisdiction over the latter only to the extent that the federal constitution extends federal law over state law. Jurisdictions with a civil law system often have a hierarchy of administrative courts separate from the ordinary courts, headed by a supreme administrative court as it the case in the Netherlands. A number of jurisdictions also follow the "Austrian" model of a separate constitutional court (first developed in the Czechoslovak Constitution of 1920). Within the British Empire, the highest court within a colony was often called the "Supreme Court", even though appeals could be made from that court to the United Kingdom's Privy Page 14 of 115

Council (based in London). A number of Commonwealth jurisdictions retain this system, but many others have reconstituted their own highest court as a court of last resort, with the right of appeal to the Privy Council being abolished. In jurisdictions using a common law system, the doctrine of stare decisis applies, whereby the principles applied by the supreme court in its decisions are binding upon all lower courts; this is intended to apply a uniform interpretation and implementation of the law. In civil law jurisdictions the doctrine of stare decisis is not generally considered to apply, so the decisions of the supreme court are not necessarily binding beyond the immediate case before it; however, in practice the decisions of the supreme court usually provide a very strong precedent, or jurisprudence constante, for both itself and all lower courts.

In the United States The Supreme Court of the United States, court in the United States, with powers of Bull (1798) in Justice Iredell's later given binding authority by Madison (1803). There are Supreme Court. Each U.S. state has a state supreme interpreting that state's law and Two states, Oklahoma and highest courts specialize in civil cases. Although specialized court, Chancery, to hear not a supreme Delaware has appellate it.

established in 1789, is the highest Federal judicial review first asserted in Calder v. dissenting opinion. The power was Justice Marshall in Marbury v. currently nine seats on the US

court, which is the highest authority administering that state's judiciary. Texas, each have two separate that respectively criminal cases and Delaware has a the Court of cases in equity, it is court because the Supreme Court jurisdiction over

The titles of state supreme court vary, which can cause confusion between jurisdictions because one state may use a name for its highest court that another uses for a lower court. In New York, Maryland, and the District of Columbia the highest court is called the Court of Appeals, a name used by many states for their intermediate appellate courts. Further, trial courts of general jurisdiction in New York are called the Supreme Court, and the intermediate appellate court is called the Supreme Court, Appellate Division. In West Virginia, the highest court of the state is the Supreme Court of Appeals. In Maine and Massachusetts the highest court is styled the "Supreme Judicial Court"; the last is the oldest appellate court of continuous operation in the Western Hemisphere. Page 15 of 115

Common Law Countries Australia In Australia, the High Court of Australia became the court of last resort with the passing of the Australia Act in 1986. This act abolished the last rights of appeal to the Privy Council. Each state and territory has its own Supreme Court, which is the highest court in that state/territory. This leads to some confusion among those from other jurisdictions as the term "supreme court" seems to refer to the court of last resort. The reason that the High Court of Australia is not named the "supreme court" is purely historical. Before the federation of the Australian colonies as states of Australia (in 1901), each colony had its own independent judicial system with a supreme court as the highest court physically within the colony (with a right of appeal to the Privy Council). On federation, the constitution provided for the establishment of a federal "supreme court", to be named the "High Court" which could hear appeals from the state Supreme Courts. With the exception of the Australian Capital Territory, each state's Supreme Court is divided into two divisions: the Trial Division and the Court of Appeal. Appeals from the ACT Supreme Court are heard in the High Court of Australia. The current Chief Justice of the High Court is Robert French.

Bangladesh The Supreme Court of Bangladesh is created by the provisions of the Constitution of Bangladesh, 1972. There are two Divisions of the Supreme Court, i.e. (a) Appellate Division and (b) High Court Division. Appellate Division is the highest Court of Appeal and usually does not exercise the powers of a court of first instance. Whereas, the High Court Division is a Court of first instance in company and admiralty matters. The Supreme Court of Bangladesh is the protector and guardian of Bangladesh Constitution. The judgements of Appellate Division of Bangladesh Supreme Court are accessible in the Chancery Law Chronicles.

Canada In Canada, the Supreme Court of Canada was established in 1875 but only became the highest court in the country in 1949 when the right of appeal to the Judicial Committee of the Privy Council was abolished. This court hears appeals of decisions made by courts of appeal from the provinces and territories and appeals of decisions made by the Federal Court of Appeal. The court's decisions are final and binding on the federal courts and the courts from all provinces and territories. The title "Supreme" can be confusing because, for example, The Supreme Court of British Columbia does not have the final say and controversial cases heard there often get appealed in higher courts - it is in fact one of the lower courts in such a process.

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Hong Kong In Hong Kong, the Supreme Court of Hong Kong (now known as the High Court of Hong Kong) was the final court of appeal during its colonial times which ended with transfer of sovereignty in 1997. The final adjudication power, as in any other British Colonies, rested with the Judicial Committee of the Privy Council (JCPC) in London, United Kingdom. Now the power of final adjudication is vested in the Court of Final Appeal created in 1997. Under the Basic Law, its constitution, the territory remains a common law jurisdiction. Consequently, judges from other common law jurisdictions (including England and Wales) can be recruited and continue to serve in the judiciary according to Article 92 of the Basic Law. On the other hand, the power of interpretation of the Basic Law itself is vested in the Standing Committee of the National People's Congress (NPCSC) in Beijing (without retroactive effect), and the courts are authorised to interpret the Basic Law when trying cases, in accordance with Article 158 of the Basic Law. This arrangement became controversial in light of the right of abode issue in 1999, raising concerns for judicial independence.

India In India, the Supreme Court of India was created on January 28, 1950 after the adoption of the Constitution. Article 141 of the Constitution of India states that the law declared by Supreme Court is to be binding on all Courts within the territory of India. It is the highest court in India and has ultimate judicial authority within India to interpret the Constitution and decide questions of national law (including local bylaws). The Supreme Court is vested with the power of judicial review to ensure the application of the rule of law. Besides, unlike most other countries, Indian Constitution places the supreme court (judiciary) co-equal with the legislative and the executive wings. Therefore the judiciary is neither superior nor inferior to the legislative or the executive. With reference to the State of Jammu and Kashmir (J&K) it would be relevant to note that, J&K has for various historical reasons a special status vis-a-vis the other states of India. Article 370 of the Constitution of India carves out certain exceptions for J&K. The Constitution of India is not fully applicable to the state of J&K. This is the effect of Article 370. The Constitution of India is applicable to the state of J&K with various modifications and exceptions. These are provided for in the Constitution (Application to Jammu and Kashmir) Order, 1954. Also, Jammu and Kashmir, unlike the other Indian states, also has its own Constitution. Although the Constitution of India is applicable to Jammu and Kashmir with numerous modifications, the Constitution (Application to Jammu and Kashmir) Order, 1954 makes Article 141 applicable to the state of J&K and hence law declared by Supreme Court is equally applicable to all courts of J&K including the High Court.

Ireland The Supreme Court is the highest court in Ireland. It has authority to interpret the constitution, and strike down laws and activities of the state that it finds to be unconstitutional. It is also the highest authority in the interpretation of the law. Constitutionally it must have authority to interpret the constitution but its further appellate jurisdiction from lower courts is defined by law. The Irish Supreme Court consists of its presiding member, the Chief Justice, and seven other Page 17 of 115

judges. Judges of the Supreme Court are appointed by the President in accordance with the binding advice of the Government. The Supreme Court sits in the Four Courts in Dublin.

Israel Israel's Supreme Court is at the head of the court system in the State of Israel. It is the highest judicial instance. The Supreme Court sits in Jerusalem. The area of its jurisdiction is the entire State. A ruling of the Supreme Court is binding upon every court, other than the Supreme Court itself. The Israeli supreme court is both an appellate court and the high court of justice. As an appellate court, the Supreme Court considers cases on appeal (both criminal and civil) on judgments and other decisions of the District Courts. It also considers appeals on judicial and quasi-judicial decisions of various kinds, such as matters relating to the legality of Knesset elections and disciplinary rulings of the Bar Association. As the High Court of Justice (Hebrew: Beit Mishpat Gavoha Le'Zedek ‫ ;קדצל הובג טפשמ תיב‬also known by its initials as Bagatz ‫)ץ"גב‬, the Supreme Court rules as a court of first instance, primarily in matters regarding the legality of decisions of State authorities: Government decisions, those of local authorities and other bodies and persons performing public functions under the law, and direct challenges to the constitutionality of laws enacted by the Knesset. The court has broad discretionary authority to rule on matters in which it considers it necessary to grant relief in the interests of justice, and which are not within the jurisdiction of another court or tribunal. The High Court of Justice grants relief through orders such as injunction, mandamus and Habeas Corpus, as well as through declaratory judgments. The Supreme Court can also sit at a further hearing on its own judgment. In a matter on which the Supreme Court has ruled - whether as a court of appeals or as the High Court of Justice - with a panel of three or more justices, it may rule at a further hearing with a panel of a larger number of justices. A further hearing may be held if the Supreme Court makes a ruling inconsistent with a previous ruling or if the Court deems that the importance, difficulty or novelty of a ruling of the Court justifies such hearing. The Supreme Court also holds the unique power of being able to order "trial de novo" (a retrial).

Nauru In Nauru, there is no single highest court for all types of cases. The Supreme Court has final jurisdiction on constitutional matters, but any other case may be appealed further to the Appellate Court. In addition, an agreement between Nauru and Australia in 1976 provides for appeals from the Supreme Court of Nauru to the High Court of Australia in both criminal and civil cases, with the notable exception of constitutional cases.

New Zealand In New Zealand, the right of appeal to the Privy Council was abolished following the passing of the Supreme Court Act (2003). The new Supreme Court of New Zealand was officially established at the beginning of 2004, although it did not come into operation until July. The High Court of New Zealand was until 1980 known as the Supreme Court.

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Pakistan The Supreme Court has been the apex court for Pakistan since the declaration of the republic in 1956 (previously the Privy Council had that function). The Supreme Court has the final say on matters of constitutional law, federal law or on matters of mixed federal and provincial competence. It can hear appeals on matters of provincial competence only if a matter of a constitutional nature is raised. With respect to Pakistan's territories (i.e. FATA, Azad Kashmir, Northern Areas and Islamabad Capital Territory (ICT)) the Supreme Court's jurisdiction is rather limited and varies from territory to territory; it can hear appeals only of a constitutional nature from FATA and Northern Areas, while ICT generally functions the same as provinces. Azad Kashmir has its own courts system and the constitution of Pakistan does not apply to it as such; appeals from Azad Kashmir relate to its relationship with Pakistan. The provinces have their own courts system, with the High Court as the apex court, except insofar as where an appeal can go to the Supreme Court as mentioned above.

United Kingdom The Supreme Court of the United Kingdom was established by the Constitutional Reform Act 2005 with effect from 1 October 2009 and assumed the judicial functions of the House of Lords, which include final appellate jurisdiction in civil cases throughout the UK, and in criminal cases in Northern Ireland, England and Wales. In the United Kingdom, there are separate legislatures with limited devolved powers over Wales, Northern Ireland and Scotland: devolution issues under the Scotland Act 1998, Government of Wales Act and Northern Ireland Act were transferred from the Judicial Committee of the Privy Council to the new Supreme Court by the Constitutional Reform Act. In respect of Community Law the Supreme Court is subject to the decisions of the European Court of Justice. Since there can be no appeal from the Supreme Court, there is an interlocutory procedure by which the Supreme Court may refer to the European Court questions of European law which arise in cases before it, and obtain a definitive ruling before the Supreme Court gives its judgment. The Supreme Court shares its members and accommodation at the Middlesex Guildhall with the Judicial Committee of the Privy Council which hears final appeals from certain smaller Commonwealth countries, admiralty cases, and certain appeals from the ecclesiastical courts and statutory private jurisdictions, such as professional and academic bodies. (The Constitutional Reform Act renamed the rarely cited Supreme Court of Judicature for England and Wales as the Senior Courts of England and Wales).

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Civil Law Countries The Roman law and the Corpus Juris Civilis are generally held to be the historical model for civil law. From the late 18th century onwards, civil law jurisdictions began to codify their laws, most of all in civil codes.

Austria In Austria, the Austrian Constitution of 1920 (based on a draft by Hans Kelsen) introduced judicial review of legislative acts for their constitutionality. This function is performed by the Constitutional Court (Verfassungsgerichtshof), which is also charged with the review of administrative acts on whether they violate constitutionally guaranteed rights. Other than that, administrative acts are reviewed by the Administrative Court (Verwaltungsgerichtshof). The Supreme Court (Oberste Gerichtshof (OGH)), stands at the top of Austria's system of "ordinary courts" (ordentliche Gerichte) as the final instance in issues of private law and criminal law.

Brazil In Brazil, the Supreme Federal Tribunal is the highest court. It is both the constitutional court and the court of last resort in Brazilian law. It only reviews cases that may be unconstitutional or final habeas corpus pleads for criminal cases. It also judges, in original jurisdiction, cases involving members of congress, senators, ministers of state, members of the high courts and the President and Vice-President of the Republic. The Superior Court of Justice reviews State and Federal Circuit courts decisions for civil law and criminal law cases, when dealing with federal law or conflicting rulings. The Superior Labour Tribunal reviews cases involving labour law. The Superior Electoral Tribunal is the court of last resort of electoral law, and also oversees general elections. The Superior Military Tribunal is the highest court in matters of federal military law.

Republic of China In the Republic of China, there are three different courts of last resort:   

Supreme Court of the Republic of China (中華民國最高法院): civil and criminal cases. Supreme Administrative Court of the Republic of China (中華民國最高行政法院): executive cases. Council of Grand Justices (大法官會議): interpretation of the Constitution, interpretation of laws and regulations, dissolution of political parties in violation of the Constitution, trial of impeachments against the President or Vice President.

The Council of Grand Justices, consisting of 15 justices and mainly dealing with constitutional issues, is the counterpart of constitutional courts in some countries. All three courts are directly under the Judicial Yuan, whose president also serves as Chief Justice in the Council of Grand Justices. Page 20 of 115

Croatia In Croatia, the supreme jurisdiction is given to the Supreme Court, which secures a uniform application of laws. The Constitutional Court exists to verify constitutionality of laws and regulations, as well as decide on individual complaints on decisions on governmental bodies. It also decides on jurisdictional disputes between the legislative, executive and judicial branches.

Denmark In Denmark, all ordinary courts have original jurisdiction to hear all types of cases, including cases of a constitutional or administrative nature. As a result, there exists no special constitutional court, and therefore final jurisdiction is vested with the Danish Supreme Court (Højesteret) which was established 14 February 1661 by king Frederik III.

France In France, supreme appellate jurisdiction is divided among three judicial bodies:   

for judicial cases, i.e., civil or criminal matters: Court of Cassation (Cour de cassation) for administrative cases: Council of State (Conseil d'État) constitutional challenges of statutory laws: Constitutional Council (Conseil constitutionnel)

When there is jurisdictional dispute between judicial and administrative courts: the Court of Arbitration (Tribunal des conflits), which is empanelled half from the Court of Cassation and half from the Council of State and presided over by the Minister of Justice, is called together to settle the dispute or hand down a final decision. The High Court (Haute Cour) exists only to impeach the President of the French Republic in case of "breach of his duties patently incompatible with his continuing in office". Since a constitutional amendment of 2007, the French Constitution states that the High Court is composed of all members of both Houses of Parliament. As of 2012, it has never been convened.

Germany In Germany, there is no single supreme court. Final interpretation of the German Constitution, the Grundgesetz, is the task of the Bundesverfassungsgericht (Federal Constitutional Court), which is the de facto highest German court as it can declare federal and state legislation immediately ineffective, and has the power to overrule decisions of all other federal courts despite not being a regular court of appeals in the German court system. In civil and criminal cases, the Bundesgerichtshof is at the top of the hierarchy of courts. The other branches of the German judicial system each have their own appellate systems, each topped by a supreme court; these are the Bundessozialgericht for social security, the Page 21 of 115

Bundesarbeitsgericht for employment and labour, the Bundesfinanzhof for taxation, and the Bundesverwaltungsgericht for administrative law. The so-called Gemeinsamer Senat der Obersten Gerichtshöfe (Joint Senate of the Supreme Courts), is not a supreme court in itself, but an ad-hoc body that is convened only in when one supreme court intends to diverge from another supreme court's legal opinion. As the courts have well-defined areas of responsibility, this situation rarely arises, and so the Joint Senate only gathers rather rarely, and only to consider matters which are mostly definitory.

The Netherlands In the Netherlands, the Supreme Court of the Netherlands is the highest. Its decisions, known as "arresten", are absolutely final. The court is banned from testing legislation against the constitution, pursuant to the principle of the sovereignty of the States-General; the court can, however, test legislation against treaties. Also, the ordinary courts in the Netherlands, including the Hoge Raad, do not deal with administrative law, which is dealt with in separate administrative courts, the highest of which is the Council of State (Raad van State)

Iceland The Supreme Court of Iceland (Icelandic: Hæstiréttur Íslands, lit. Highest Court of Iceland) was founded under Act No. 22/1919 and held its first session on 16 February 1920. The Court holds the highest judicial power in Iceland, where the court system has two levels.

Italy Italy follows the French system of different supreme courts. The Italian court of last resort for most disputes is the Corte Suprema di Cassazione. There is also a separate constitutional court, the Corte costituzionale, which has a duty of judicial review, and which can strike down legislation as being in conflict with the Constitution.

Japan In Japan, the Supreme Court of Japan is called 最高裁判所 (Saikō-Saibansho; called 最高裁 Saikō-Sai for short), located in Chiyoda, Tokyo, and is the highest court in Japan. It has ultimate judicial authority within Japan to interpret the Constitution and decide questions of national law (including local by-laws). It has the power of judicial review (i.e., it can declare Acts of Diet and Local Assembly, and administrative actions, unconstitutional).

Luxembourg In Luxembourg, challenges on the conformity of the law to the Constitution are brought before the Cour Constitutionnelle (Constitutional Court). — The most used and common procedure to present these challenges is by way of the "question préjudicielle" (prejudicial question). The Court of last resort for civil and criminal proceedings is the "Cour de Cassation". Page 22 of 115

For administrative proceedings the highest court is the "Cour Administrative" (Administrative Court).

Macau The supreme court of Macau is the Court of Final Appeal (Portuguese: Tribunal de Última Instância; Chinese: 澳門終審法院).

Philippines While the Philippines is generally considered a civil law nation, its Supreme Court is heavily modelled after the American Supreme Court. This can be attributed to the fact that the Philippines was colonized by both Spain and the United States, and the system of laws of both nations strongly influenced the development of Philippine laws and jurisprudence. Even as the body of Philippine laws remain mostly codified, the Philippine Civil Code expressly recognizes that decisions of the Supreme Court "form part of the law of the land", belonging to the same class as statutes. The 1987 Philippine Constitution also explicitly grants to the Supreme Court the power of judicial review over laws and executive actions. The Supreme Court is composed of 1 Chief Justice and 14 Associate Justices. The court sits either en banc or in divisions, depending on the nature of the case to be decided.

Portugal In Portugal, there are several supreme courts, each with a specific jurisdition:    

The Supreme Court of Justice (Supremo Tribunal de Justiça) - for judicial (civil and criminal) matters; The Constitutional Court (Tribunal Constitucional) - for the constitutional matters; The Supreme Administrative Court (Supremo Tribunal Administrativo) - for administrative and fiscal matters; The Court of Auditors (Tribunal de Contas) - for auditing the public expenditure.

Scotland Founded by papal bull in 1532, the Court of Session is the supreme civil court of Scotland, and the High Court of Justiciary is the supreme criminal court. However, the absolute highest court (excluding criminal matters) is the Supreme Court of the United Kingdom.

Spain Spanish Supreme Court is the highest court for all cases in Spain (both private and public). Only those cases related to human rights can be appealed at the Constitutional Court (which also decides about acts accordance with Spanish Constitution).

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In Spain, high courts cannot create binding precedents; however, lower rank courts usually observe Supreme Court interpretations. In most private law cases, two Supreme Court judgements supporting a claim are needed to appeal at the Supreme Court. Five sections form the Spanish Supreme court:     

Section one judges private law cases (including commercial law). Section two decides about criminal appeals. Section three judges administrative cases and controls government normative powers. Section four is dedicated to labour law. Section five is dedicated to military justice.

Sweden In Sweden, the Supreme Court and the Supreme Administrative Court respectively function as the highest courts of the land. The Supreme Administrative Court considers cases concerning disputes between individuals and administrative organs, as well as disputes among administrative organs, while the Supreme Court considers all other cases. The judges are appointed by the Government. In most cases, the Supreme Courts will only grant leave to appeal a case (prövningstillstånd) if the case involves setting a precedent in the interpretation of the law. Exceptions are issues where the Supreme Court is the court of first instance. Such cases include an application for a retrial of a criminal case in the light of new evidence, and prosecutions made against an incumbent minister of the Government for severe neglect of duty. If a lower court has to try a case which involves a question where there is no settled interpretation of the law, it can also refer the question to the relevant Supreme Court for an answer.

Switzerland In Switzerland, the Federal Supreme Court of Switzerland is the final court of appeals. Due to Switzerland's system of direct democracy, it has no authority to review the constitutionality of federal statutes, but the people can strike down a proposed law by referendum. According to settled case law, however, the Court is authorised to review the compliance of all Swiss law with certain categories of international law, especially the European Convention of Human Rights.

Sri Lanka In Sri Lanka, the Supreme Court of Sri Lanka was created in 1972 after the adoption of a new Constitution. The Supreme Court is the highest and final superior court of record and is empowered to exercise its powers, subject to the provisions of the Constitution. The court rulings take precedence over all lower Courts. The Sri Lanka judicial system is complex blend of both common-law and civil-law. In some cases such as capital punishment, the decision may be passed on to the President of the Republic for clemency petitions. However, when there is 2/3 majority in the parliament in favour of president (as with present), the supreme court and its judges' powers become nullified as they could be fired from their positions according to the Constitution, if the president wants. Therefore, in such situations, Civil law empowerment vanishes. Page 24 of 115

South Africa In South Africa, the Supreme Court of Appeal (SCA) was created in 1994 and replaced the Appellate Division of the Supreme Court of South Africa as the highest court of appeal in nonconstitutional matters. The SAC is subordinate to the Constitutional Court, which is the highest court in matters involving the interpretation of the Constitution.

In the Soviet Union In most nations with constitutions modelled after the Soviet Union, the legislature was given the power of being the court of last resort. In the People's Republic of China, the final power to interpret the law is vested in the Standing Committee of the National People's Congress (NPCSC). This power includes the power to interpret the basic laws of Hong Kong and Macau, the constitutional documents of the two special administrative regions which are common law and Portuguese-based legal system jurisdictions respectively. This power is a legislative power and not a judicial one in that an interpretation by the NPCSC does not affect cases which have already been decided.

International Standards for Judicial Appointments Japanâ&#x20AC;&#x2122;s process for selecting Judges is longer and more stringent than the process in the United States and in Mexico. Assistant judges are appointed from those who have completed their training at the "Legal Training and Research Institute" located in Wako City. Once appointeid, assistant judges still may not qualify to sit alone until they have served for five years, and have been appointed by the Supreme Court. Judges require ten years of experience in practical affairs, public prosecutor, or practicing attorney. In the Japanese Judicial Branch there is the Supreme Court located in Japan, eight high courts, fifty district courts, fifty family courts, and 438 summary courts. In difference, Mexican Supreme Court Justices are appointed by the president, and then are approved by the Senate to serve for a life term. Other justices are appointed by the Supreme Court and serve for six years. Federal courts consist of the Supreme Court with 21 magistrates, 32 circuit tribunals and 98 district courts. The Supreme Court of Mexico is located in "Mexico City. Supreme Court Judges must be of ages 35 to 65 and hold a law degree during the five years preceding their nomination. In the United States Supreme Court, justices are appointed by the president and approved by the Senate. As in Mexico, justices serve for a life term or until retirement. The Supreme Court of the United States is located in "Washington D.C". The Federal court system consists of 94 federal judicial districts. The 94 districts are then divided into twelve regional circuits. The United States consist of five different types of courts that are considered subordinate to the Supreme Court, Page 25 of 115

U.S bankruptcy courts, U.S Courts of Appeal for the federal circuit, U.S Court of International Trade, U.S Courts of Appeal, and U.S District Courts.

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Judicial Independence Judicial Independence is the concept that the judiciary needs to be kept away from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government, or from private or partisan interests. Judicial Independence is vital and important to the idea of separation of powers. Different countries deal with the idea of judicial independence through different means of judicial selection, or choosing judges. One way to promote judicial independence is by granting life tenure or long tenure for judges, which ideally frees them to decide cases and make rulings according to the rule of law and judicial discretion, even if those decisions are politically unpopular or opposed by powerful interests. This concept can be traced back to 18th century England. In some countries, the ability of the judiciary to check the legislature is enhanced by the power of judicial review. This power can be used, for example, by mandating certain action when the judiciary perceives that a branch of government is refusing to perform a constitutional duty, or by declaring laws passed by the legislature unconstitutional. Constitutional economics studies issues such as the proper distribution of national wealth including government spending on the judiciary. In transitional and developing countries, spending on the judiciary may be controlled by the executive. This undermines the principle of judicial independence because it creates a financial dependence of the judiciary on the executive. It is important to distinguish between two methods of corruption of the judiciary: the state (through budget planning and privileges) being the most dangerous, and private. State corruption of the judiciary can impede the ability of businesses to optimally facilitate the growth and development of a market economy.

National and International Developments The development judicial independence has been argued to involve a cycle of national law impacting international law, and international law subsequently impacting national law.[2] This is said to occur in three phases: the first phase is characterized by the domestic development of the concept of judicial independence, the second by the seeping of this concept into the international scene, and the third by the re-domestication of newly reformulated international principles of judicial independence, which may have significant and dramatic results. Page 28 of 115

A notable illustration of this cycle of impacting and reimpacting is that of the United Kingdom. The first phase occurred in England with the original conception of judicial independence in the Act of Settlement in 1701.[3] The second phase was evident when England’s concepts regarding judicial independence first entered the international scene, and from there moved into the domestic arenas of other countries; for instance, England served as the theoretical model for Montesquieu’s separation of powers doctrine[4] and the Founding Fathers of the US Constitution used England as their dominant model in formulating the Constitution’s Article III, which is the foundation of American judicial independence.[5] Other common law countries, including Canada, Australia, and India, also adopted the British model of judicial independence.[6] In recent decades the third phase of judicial independence has come to play in the UK, [7] as it has been significantly influenced by judicial independence principles developed by international human rights constitutional documents. The European Court of Human Rights (ECtHR) has had a significant impact on the conceptual analysis of judicial independence in England and Scotland. This process began in the 1990s with the ECtHR hearing UK cases, and later this process found its dramatic expression in the application of the ECtHR in the British Human Rights Act, which came into force in 2000.[8] Where British national law had previously impacted the international development of judicial independence, the British Constitutional Reform Act of 2005[9] signaled a shift, with international law now impacting British domestic law. The Constitutional Reform Act dramatically reformed government control over the administration of justice in England and Wales; importantly, it discontinued the aberrant position of the Lord Chancellor, one of the country’s oldest constitutional offices, who was entrusted with a combination of legislative, executive, and judicial capacities.[10] The Lord Chancellor served as speaker of the Upper House of Parliament, the House of Lords; as a member of the executive branch and member of the senior cabinet; and as the head of the judiciary. Historically, the appellate function had a connection with the executive branch due to the types of cases typically heard – impeachment and the hearing of felony charges against peers.[11] The Constitutional Reform Act established new lines of demarcation between the Lord Chancellor and the judiciary, transferring all the judicial functions to the judiciary and entrusting the Lord Chancellor only with what are considered administrative and executive matters. In addition, the Constitutional Reform Act replaced the Lord Chancellor by the Lord Chief Justice as head of the judiciary, separated the judicial Appellate Committee of the House of Lords from the legislative parliament, reforming it as the Supreme Court, and creating a Judicial Appointments Commission.[12] The creation of the Supreme Court was important, for it finally separated the highest court of appeal from the House of Lords.[13] Thus, the United Kingdom, where the first phase of judicial independence began over three hundred years ago, illustrates vividly the mutual impacts of national and international law and jurisprudence in the area of judicial independence. It demonstrates a cycle of mutual normative impacts and cross-conceptual fertilizations. In this process, concepts and ideas have become enriched as they have been implemented in successive judicial and political systems, as each system has enhanced and deepened the concepts and ideas it actualized. In addition to the UK, similar developments of conceptual cross-fertilization can be seen internationally, for example in Page 29 of 115

EU law,[14] in civil law countries such as Austria, and in other common law jurisdictions including Canada.[15] International standards The International Association of Judicial Independence and World Peace produced the Mt. Scopus International Standards of Judicial Independence between 2007 and 2012. These built on the same association's New Delhi Minimum Standards on Judicial independence adopted in 1982 and their MontrĂŠal Universal Declaration on the Independence of Justice in 1983. Other influences they cite for the standards include the UN Basic Principles of Judicial Independence from 1985, the Burgh House Principles of Judicial Independence in International Law (for the international judiciary), Tokyo Law Asia Principles, Council of Europe Statements on judicial independence (particularly the Recommendation of the Committee of Ministers to Member States on the independence, efficiency and role of judges), the Bangalore Principles of Judicial Conduct 2002, and the American Bar Association's revision of its ethical standards for judges.[16]

The Justice System In recent years, the principle of Judicial Independence has been described as one of the core values of the justice system.

Contemporary Usage Under the uncodified British Constitution, there are two important conventions which help to preserve judicial independence. The first is that the Parliament of the United Kingdom does not comment on the cases which are before the court. The second is the principle of parliamentary privilege: that Members of Parliament are protected from prosecution in certain circumstances by the courts. Furthermore, the independence of the judiciary is guaranteed by the Constitutional Reform Act 2005.[23] In order to try to promote the independence of the judiciary, the selection process is designed to minimize political interference. The process focuses on senior members of the judiciary rather than on politicians. Part 2 of the Tribunals, Courts and Enforcement Act 2007 aims to increase diversity among the judiciary. The pay of judges is determined by an independent pay review body. It will make recommendations to the government having taken evidence from a variety of sources. The government accepts these recommendations and will traditionally implement them fully. As long as judges hold their positions in "good order," they remain in post until they wish to retire or until they reach the mandatory retirement age of 70. As of March 2008, the legal profession is self-regulating; it is responsible for implementing and enforcing its own professional standards and disciplining its own members. In this case, the bodies are the Bar Council and the Law Society. However, this self-regulation will come to an end when those bodies themselves come under the regulation of the Legal Standards Board, composed of non-lawyers, under the Legal Services Act 2007. Page 30 of 115

In The United States Federal Courts Article III of the United States Constitution establishes the federal courts as part of the federal government. The Constitution provides that federal judges, including judges of the Supreme Court of the United States, are appointed by the President "by and with the advice and consent of the Senate." Once appointed, federal judges: ...both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office. Federal judges vacate office only upon death, resignation, or impeachment and removal from office by Congress; only 13 federal judges have ever been impeached. The phrase "during good behavior" predates the Declaration of Independence. John Adams equated it with quamdiu se bene gesserint in a letter to the Boston Gazette published on 11 January 1773,[24] a phrase that first appeared in section 3 of the Act of Settlement 1701 in England. The President is free to appoint any person to the federal bench, yet typically he consults with the American Bar Association,whose Standing Committee on the Federal Judiciary rates each nominee "Well Qualified," "Qualified" or "Not Qualified."

State Courts State courts deal with independence of the judiciary in many ways, and several forms of judicial selection are used for both trial courts and appellate courts (including state supreme courts), varying between states and sometimes within states. In some states, judges are elected (sometime on a partisan ballot, other times on a nonpartisan one), while in others they are appointed by the governor or state legislature. The 2000 case of Bush v. Gore, in which a majority of the Supreme Court, including some appointees of President George H. W. Bush, overruled challenges to the election of the George W. Bush then pending in the Florida Supreme Court, whose members had all been appointed by Democratic governors, is seen by many as reinforcing the need for judicial independence, both with regard to the Florida Supreme Court and the US Supreme Court. This case has focused increased attention on judicial outcomes as opposed to the traditional focus on judicial qualifications.

In The Soviet Union The Judiciary of Russia interprets and applies the law of Russia. It is defined under the Constitution and law with a hierarchical structure with the Constitutional Court, Supreme Court, Page 31 of 115

and Supreme Court of Arbitration at the apex. The district courts are the primary criminal trial courts, and the regional courts are the primary appellate courts. The judiciary is governed by the All-Russian Congress of Judges and its Council of Judges, and its management is aided by the Judicial Department of the Supreme Court, the Judicial Qualification Collegia, the Ministry of Justice, and the various courts' chairpersons. And although there are many officers of the court, including jurors, the Prosecutor General remains the most powerful component of the Russian judicial system. The judiciary faces many problems and a widespread lack of confidence but has also made much progress in recent times. There have been serious violations of the accepted separation of powers doctrine, systematic attempts to undermine jury trials, problems with access to justice, problems with court infrastructure and financial support, and corruption. But the judiciary has also seen a fairer and more efficient administration, a strengthening of the rule of law, moves towards a more adversarial system, and increased utilization of the justice system under Putin. Russia has a trifurcated court system, with constitutional, ordinary, and commercial courts. The Constitutional Court of Russia is considered a separate, independent court. The district courts are the primary criminal trial courts, and the regional courts are the primary appellate courts. The ordinary courts have a four-tiered hierarchy and are responsible for civil and criminal cases:    

the Supreme Court of Russia, regional courts, district courts, and magistrate courts.

In 1995, the courts sentenced about 1 million people for criminal offenses, and considered 3 million administrative offenses and 2.5 million civil cases.

Constitutional Court The Constitutional Court of Russia (Конституционный суд Российской Федерации) is responsible for cases concerning conformity with the Constitution, judicial disputes between 2 or more federal bodies, between a federal body and a member of the Federation, and between members of the Federation.[2] As such, it practices "constitutional review" (as differentiated from judicial review) and decides whether federal laws, presidential decrees and directives, and local constitutions, charters, and laws comply with the federal constitution, as well as treaties between the national government and a regional governments and between regional governments. It is composed of 19 judges, and may sit in plenary sessions but is otherwise divided into 2 chambers.[2] The Constitutional Court consists of two chambers with 10 and 9 judges Page 32 of 115

respectively. The Chairman presides over one of the chambers, the Deputy Chairman presides over the other chamber. Constitutionality of laws, disputes concerning competence of governmental agencies, impeachment of the President of Russia, and Constitutional Court's proposals of legislation must be dealt with by the plenary session. The Constitutional Court may also submit to the plenary session any other issue at its discretion. In general, the court hears cases referred by the President, the Federation Council, the State Duma, one-fifth of the members of either chamber of the Federal Assembly, the Government, the Supreme Court, or other bodies of legislative or executive authority.[2] It also hears complains by citizens of allegations of constitutional rights violations.[2]

Supreme Court The Supreme Court of Russia (Верховный суд Российской Федерации) is the highest court, and supervises inferior courts of general jurisdiction. It occasionally sits as a court of first instance in cases where important interests of state are at issue; in this case it normally consists of a judge and a jury, but occasionally consists of three judges. There are 115 members of the Supreme Court. At plenary sessions the Supreme Court studies the judicial decisions of lower courts on various topics and adopts resolutions, which establish recommendations on the interpretation of particular provisions of law for lower courts for uniform application. The Presidium of the Russian Supreme Court (Президиум Верховного Суда Российской Федерации) represents Russia's final court of appeal. The Presidium consists of thirteen judges: the Chairman of the Supreme Court, its first deputy chairman, its six deputy chairmen and five other Supreme Court judges. Only the Prosecutor General has the right to appeal to the Presidium, and as a result, very few criminal cases reviewed by the three-judge panels of the Supreme Court make it to the Presidium. Only 0.4% of criminal cases in 1998 ended with an acquittal in the Presidium. The court is divided into several chambers or collegia (коллегия), and each chamber normally sits with three judges:    

civil (коллегии по гражданским); criminal (коллегии по уголовным); military (Военной коллегии); administrative (коллегии по административным); and Page 33 of 115



appeals (Апелляционная коллегия; formerly the cassation panel or Кассационная коллегия), which can review decisions of the other chambers.

There are several entities attached to the Supreme Court. The Academic Consultative Council (Научно-консультативный совет при Верховном Суде Российской Федерации) assists the court in various legal and academic matters and comprises members of the Supreme Court itself, academics, practicing lawyers, and law enforcement officers. The members of the Academic Consultative Council are elected at plenary sessions of the Supreme Court. The Judicial Department is responsible for administration of the courts.

Regional Courts Regional courts (also called kray courts and city courts) are the courts at the regional level, though are not all named as such. This includes the supreme courts of the Republics of Russia, courts of the krais (territories; краевой суд or kray courts), courts of the oblasts (regions; областной суд), city courts of the federal cities of Russia (Moscow and Saint Petersburg), courts of the autonomous oblasts, and courts of the autonomous okrugs. The courts sit as both courts of first instance and appellate courts. As courts of first instance, they hear more complex civil cases and serious criminal cases. A judge and a jury, or alternatively 3 judges, hear these cases. As appellate courts, they hear decisions of district courts that have not yet entered into force, and consist of 3 judges.

District Courts District courts (районный суд or городской суд; also called rayon or raion courts), which were called People's Courts until 1996, are primarily courts of first instance but sometimes hear appeals from magistrate courts.[7] They are formed in areas (районах or rayons), urban areas (районах в городах), and cities (городах). Decisions of the court are appealed to the regional court. As courts of first instance, they handle criminal cases where imprisonment is for more than 3 years, and consist of 1 judge and a jury where required. As courts of appeal from decisions of the magistrate courts consisting of 1 justice of the peace, they consist of 1 judge and retry the case.

Arbitration Courts Arbitration courts (арбитражный суд; also called arbitrazh or commercial courts) hear cases dealing with a wide matter of contractual issues, such as rights of ownership, contract changes, performance of obligations, loans, bank accounts, and bankruptcy. They operate independently of the other courts. The Supreme Court of Arbitration of Russia (also called the Supreme Commercial Court, the Supreme Arbitrazh Court, or the Supreme Arbitration Court) is the highest such court, and consists of 1 chairman and 4 deputy chairmen. Page 34 of 115

Magistrate Courts Magistrate courts (мировой суд; also called Justices of the Peace Courts) handle criminal cases where imprisonment is for less than three years such as petty hooliganism, public drunkenness, and serious traffic violations of a non-criminal nature, minor civil cases such as simple divorces, some property cases, disputes over land, and some labor cases, as well as some federal administrative law cases. The magistrate courts were expected to hear two-thirds of all civil cases and close to 100,000 criminal cases. It consists of one magistrate or justice of the peace. Pursuant to the 2002 Federal Law on Organs of the Judicial Community, which is the legal basis for the judicial organs of self-government, the All-Russian Congress of Judges is the supreme body of the judiciary.[10] The Congress elects the members of the Council of Judges, the self-government body of the judiciary. The Judicial Department of the Supreme Court of Russia is responsible for administration of the courts, such as selection and training of judicial candidates, working with law institutes, and qualifications of judges and other court officers. It is expected to enhance the independence of the judicial branch. It also supports the Council of Judges and the Supreme Qualifying Collegium. Judicial Qualification Collegia are bodies of judicial self-regulation that were established at the regional (Judicial Qualification Collegia) and national (Supreme Qualification Collegium) levels. They play a key role in the appointment, promotion and dismissal of judges. Some judges serve as a court chairperson. The court chairperson is solely responsible for the allocation of cases to judges, has considerable powers in the matters of appointment, and makes the initial recommendation for disciplinary measures, in particular dismissal.

Court Officers Judges are appointed by the Federation Council, and serve for life. Candidates are recommended by the Qualification Collegia / Supreme Qualification Collegium to the President, who in turn recommends candidates to the Federation Council. The judges of the Constitutional Court are nominated by the President and appointed by the Federation Council for 12 years, and the judges must be at least 40 years old and must retire at 70 years old. The also must have served as a lawyer for at least 15 years and have a "recognized high qualification" (quotation from Constitutional Court Act) in law. The Russian Minister of Justice is responsible for appointing judges to regional and city courts; however, in practice, many appointments below the national level still are made by the chief executives of subnational jurisdictions.

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Judges of the district courts are appointed by the President. A candidate must be at least 25 years old, is expected to have received a higher legal education (commonly a specialist degree), have at least 5 years of experience in the legal profession, and pass an examination from the Ministry of Justice. Justices of the peace are usually appointed by the regional legislature, but may also be elected. Justices of the peace require most of the same qualifications.

Prosecutors The Prosecutor General of Russia is the highest prosecutor in Russia, and both he and his office are independent from the executive, legislative and judicial branches of power. The Prosecutor General remains the most powerful component of the Russian judicial system. The Prosecutor General is entrusted with: 1. prosecution in court on behalf of the State; 2. representation of the interests of a citizen or of the State in court in cases determined by law; 3. supervision of the observance of laws by bodies that conduct detective and search activity, inquiry and pre-trial investigation; 4. supervision of the observance of laws in the execution of judicial decisions in criminal cases, and also in the application of other measures of coercion related to the restraint of personal liberty of citizens. The Investigative Committee of Russia, sometimes described as the "Russian FBI", is the main federal investigating authority in Russia, formed in place of the Investigative Committee of the Prosecutor General in 2011. The Prosecutor General is nominated by the President of Russia and appointed by the majority of Federation Council for a term of five years. If the nomination fails, the President must nominate another candidate within 30 days. The resignation of the Prosecutor General before the end of his term should be approved by both a majority of Federation Council and the President.

Advocates The Russian legal profession is unregulated, but there have been moves towards unification and regulation recently. Anyone with a legal education can practice law, but only a member of the Advokatura (Адвокатура) may practice before a criminal court. Legal education has traditionally begun with the specialist degree in law (специалист по правоведению). An "advocate" is an attorney who has demonstrated qualification and belongs to an organizational structure of advocates specified by law, known as being "called to the bar" in commonwealth countries. An examination is administered by the qualifications commission of a court for admission to its Advokatura. To sit for the exam, one must have a higher legal education (commonly a specialist degree) and either two years of experience in legal work or a training program in a law firm. The Page 36 of 115

exam is both written and oral, but the main test is oral. The qualifications commission is composed of seven advocates, two judges, two representatives of the regional legislature, and two representatives of the Ministry of Justice. In 1988 there were 25,000 lawyers,[19] and in 2002 there were 47,000 defense lawyers in all of Russia.

Jurors A juror must be 25 years old, legally competent, and without a criminal record.

Regulation of Russian Law The judiciary is primarily regulated by the Constitution of Russia, the Code of Criminal Procedure, and the 1996 Federal Constitutional Law on the Judicial System of the Russian Federation. The Constitution states that the judicial branch is independent of the legislative and executive branches, but there have been serious violations of the accepted separation of powers doctrine. There is no usage of precedent, as used in common law legal systems. As such, the law on appeal may depend on the composition of the chamber deciding the appeal. A chamber normally consists of 3 judges, out of the dozens of judges within the court (19 in the Constitutional Court, 115 in the Supreme Court). Without the legal principle of stare decisis, for each case a chamber may come to a different, even contradictory, conclusion, even compared to chambers within the same session. If they come to relatively consistent decisions, those in civil law legal systems call this jurisprudence constante.

Criminal Procedure Everyone has the right of legal assistance. The accused have the right to a defense lawyer from the time they are detained, put in custody, charged, or declared a suspect. According to the 2001 Code of Criminal Procedure, defense lawyers can participate in investigations with the consent of the prosecutor, meet privately with a client, collect evidence independently of the prosecutor, identify defense witnesses, present expert witnesses, be present for all court procedures, access to the prosecutions evidence after the investigation, and to file appeals regarding court procedures. For serious and specific crimes, the accused have the option of a jury trial consisting of 12 jurors.[8] The crimes that may be tried by a jury are murder, kidnapping, rape with aggravating circumstances, child trafficking, gangsterism, large-scale bribery, treason, terrorism, public calls for violent change in the constitutional system or for the seizure of power, and select other crimes against the state. The Constitution of Russia stipulates that, until the abolition of the death penalty, all defendants in a case that may result in a death sentence are entitled to a jury trial. Jurors are selected by the prosecution and defense from a list of 30-40 eligible candidates. They are similar to common law juries, and unlike lay judges, in that they sit separately from the judges and decide questions of fact alone while the judge determines questions of law. They Page 37 of 115

must return unanimous verdicts during the first 3 hours of deliberation, but may return majority verdicts after that, with 6 jurors being enough to acquit. They may also request that the judge show leniency in sentencing.

Main Criticism The arbitrazh courts have been singled out as particularly effective in dealing with business issues.[9] Also, the number of people seeking assistance of the judicial system has increased from 1 million under Yeltsin to 6 million under Putin. However, Transparency International found that 78% of respondents reported they did not expect to find justice in the courts. Both public perception and comments from senior judges point to bribery as prevalent at the trial court level. There have been serious violations of the accepted separation of powers doctrine. Constitutional Court Judge and Council of Judges member Vladimir Yaroslavtsev, in a 2009 interview with the Spanish newspaper El PaĂs, claimed that the presidential executive office and security services had undermined judicial independence in Russia. Constitutional Court Judge Anatoly Kononov, who had frequently dissented from decisions taken by the majority of the court, in his interview to Sobesednik supported Yaroslavtsev, claiming that there was no independent judiciary in Russia. There have been accusations of systematic attempts to undermine jury trials, including juror intimidation and bribery, and systematic trial delays. The number of jury trials remains small, at about 600 per year, out of about 1 million trials. Lawmakers are continuously chipping away at what types of criminal offenses merit a jury trial. Juries have granted acquittals in 15-20% of cases, compared with less than 1% in cases decided by judges. Juries may be dismissed and skeptical juries have been dismissed on the verge of verdicts, and acquittals are frequently overturned by higher courts. Compared to other industrialized nations, Russia has historically had a small number of lawyers in relation to its population. In 2002 there were 47,000 defense lawyers in all of Russia, while the courts sentenced about 1 million people for criminal offenses and considered 3 million administrative offenses and 2.5 million civil cases, and the Russian Census of 2002 put the resident population at more than 145 million people. For a comparison to the United States, the number of active lawyers practicing before the judiciary of California as of December 2012 was more than 179,000, while the 2010 United States Census put the California population at more than 37 million people. The court chairperson has sole discretion for allocation of court cases, and there is no systematic procedure for allocation based on objective criteria. There have been reports where the chairperson always assigns sensitive cases to particular judges or transfers cases to another judge during an ongoing trial. There have been allegations of corruption concerning the oral exam required for admission to the Advokatura, known as being "called to the bar" in commonwealth countries. Page 38 of 115

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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 is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries. Judicial review can be understood in the context of two distinctâ&#x20AC;&#x201D;but parallelâ&#x20AC;&#x201D;legal systems, civil law and common law, and also by two distinct theories of democracy regarding the manner in which government should be organized with respect to the principles and doctrines of legislative supremacy and the separation of powers. First, two distinct legal systems, civil law and common law, have different views about judicial review. Common-law judges are seen as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid. In the civil-law tradition, judges are seen as those who apply the law, with no power to create (or destroy) legal principles. Secondly, the idea of separation of powers is another theory about how a democratic society's government should be organized. In contrast to legislative supremacy, the idea of separation of powers was first introduced by Montesquieu; it was later institutionalized in the United States by the Supreme Court ruling in Marbury v. Madison under the court of John Marshall. Separation of powers is based on the idea that no branch of government should be able to exert power over any other branch without due process of law; each branch of government should have a check on the powers of the other branches of government, thus creating a regulative balance among all branches of government. The key to this idea is checks and balances. In the United States, judicial review is considered a key check on the powers of the other two branches of government by the judiciary, although the power itself is not granted by the Constitution. Differences in organizing "democratic" societies led to different views regarding judicial review, with societies based on common law and those stressing a separation of powers being the most likely to utilize judicial review. Nevertheless, many countries whose legal systems are based on the idea of legislative supremacy have learned the possible dangers and limitations of entrusting power exclusively to the legislative branch of government. Many countries with civil-law systems have adopted a form of judicial review to stem the tyranny of the majority. Another reason why judicial review should be understood in the context of both the development of two distinct legal systems (civil law and common law) and two theories of democracy Page 40 of 115

(legislative supremacy and separation of powers) is that some countries with common-law systems do not have judicial review of primary legislation. Though a common-law system is present in the United Kingdom, the country still has a strong attachment to the idea of legislative supremacy; consequently, judges in the United Kingdom do not have the power to strike down primary legislation. However, since the United Kingdom became a member of the European Union there has been tension between its tendency toward legislative supremacy and the EU's legal system, which specifically gives the Court of Justice of the European Union the power of judicial review.

Judicial Review of Administrative Acts Most modern legal systems allow the courts to review administrative acts (individual decisions of a public body, such as a decision to grant a subsidy or to withdraw a residence permit). In most systems, this also includes review of secondary legislation (legally-enforceable rules of general applicability adopted by administrative bodies). Some countries (notably France and Germany) have implemented a system of administrative courts which are charged with resolving disputes between members of the public and the administration. In other countries (including the United States, Scotland and the Netherlands), judicial review is carried out by regular civil courts although it may be delegated to specialized panels within these courts (such as the Administrative Court within the High Court of England and Wales). The United States employs a mixed system in which some administrative decisions are reviewed by the United States district courts (which are the general trial courts), some are reviewed directly by the United States courts of appeals and others are reviewed by specialized tribunals such as the United States Court of Appeals for Veterans Claims (which, despite its name, is not technically part of the federal judicial branch). It is quite common that before a request for judicial review of an administrative act is filed with a court, certain preliminary conditions (such as a complaint to the authority itself) must be fulfilled. In most countries, the courts apply special procedures in administrative cases.

Judicial Review of Primary Legislation There are three broad approaches to judicial review of the constitutionality of primary legislationâ&#x20AC;&#x201D;that is, laws passed directly by an elected legislature. Some countries do not permit a review of the validity of primary legislation. In the United Kingdom, statutes cannot be set aside under the doctrine of parliamentary sovereignty. Another example is the Netherlands, where the constitution expressly forbids the courts to rule on the question of constitutionality of primary legislation.

Review by General Courts In the United States, federal and state courts (at all levels, both appellate and trial) are able to review and declare the "constitutionality", or agreement with the Constitution (or lack thereof) of legislation that is relevant to any case properly within their jurisdiction. In American legal language, "judicial review" refers primarily to the adjudication of constitutionality of statutes, especially by the Supreme Court of the United States. This is commonly held to have been Page 41 of 115

established in the case of Marbury v. Madison, which was argued before the Supreme Court in 1803. A similar system was also adopted in Australia.

Review by A Specialized Court In 1920, Czechoslovakia adopted a system of judicial review by a specialized court, the Constitutional Court as written by Hans Kelsen, a leading jurist of the time. This system was later adopted by Austria and became known as the Austrian System, also under the primary authorship of Hans Kelsen, being emulated by a number of other countries. In these systems, other courts are not competent to question the constitutionality of primary legislation; they often may, however, initiate the process of review by the Constitutional Court. Russia adopts a mixed model since (as in the US) courts at all levels, both federal and state, are empowered to review primary legislation and declare its constitutionality; as in the Czech Republic, there is a constitutional court in charge of reviewing the constitutionality of primary legislation. The difference is that in the first case, the decision about the laws adequacy to the Russian Constitution only binds the parties to the lawsuit; in the second, the Court's decision must be followed by judges and government officials at all levels. Legal Reformation Law Reform or Legal Reform is the process of examining existing laws, and advocating and implementing changes in a legal system, usually with the aim of enhancing justice or efficiency. Intimately related are law reform bodies or law commissions, which are organizations set up to facilitate law reform. Law reform bodies carry out research and recommend ways to simplify and modernize the law. Many law reform bodies are statutory corporations set up by governments, although they are usually independent from government control, providing intellectual independence to accurately reflect and report on how the law should progress. Law reform activities can include preparation and presentation of cases in court in order to change the common law; lobbying of government officials in order to change legislation; and research or writing that helps to establish an empirical basis for other law reform activities. The four main methods in reforming law are repeal (get rid of a law), creation of new law, consolidation (change existing law) and codification. The expression "law reform" is used in a number of senses and some of these are close to being wholly incompatible with each other. In the Law Reform Commission Act 1975, the expression "reform" includes, in relation to the law or a branch of the law, its development, its codification (including in particular its simplification and modernisation) and the revision and consolidation of statute law, and kindred words must be construed accordingly.

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Correlation with Judicial Reform Judicial reform is the complete or partial political reform of a country's judiciary. Judicial reform is often done as a part of wider reform of the country's political system or a legal reform. The President of the Constitutional Court of the Russian Federation, Valery Zorkin, gives in his article, "Twelve Theseses on Legal Reform in Russia", first published in Russian magazine «Legislation and Economics», N. 2, 2004 an explained correlation between legal and judicial reform: "Complete legal reform should normally include not only judicial reform, but also reform of various aspects of the structural system and content of legislation, legal education, legal awareness by the population, and also the corporate consciousness of the whole legal community. Judicial reform usually aims to improve such things as law courts, procuracies, advocacy (bar), inquest, executory processes, and record keeping.".

Economic Considerations Legal reform can be the ―driver‖ for all other reforms, including reform of the economy. A true market economy cannot be created without ensuring both full guarantees of private property and transparent predictability for entrepreneurial activity, on the one hand; and sufficiently reasonable legal control over economic processes, on the other hand. Legal reform should be an integral part of any on-going reform process. Legal reform is a tool for implementing necessary reforms, to balance competing interests, create a dynamic and sustainable economy, and build a sustainable civil society. During last decades the judiciary became active in economic issues related with economic rights established by constitution because "economics may provide insight into questions that bear on the proper legal interpretation".[4] Since many a country with a transitional political and economic system continues treating its constitution as an abstract legal document disengaged from the economic policy of the state, practice of judicial review of economic acts of executive and legislative branches became to grow. The budget of the judiciary in many transitional and developing countries is completely controlled by the executive. The latter undermines the separation of powers, as it creates a critical financial dependence of the judiciary. The proper national wealth distribution including the government spending on the judiciary is subject of the constitutional economics. It is important to distinguish between the two methods of corruption of the judiciary: the state (through budget planning and various privileges), and the private.

The US Model Judicial review within the United States is the ability of a court to examine and decide if a statute, treaty or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution. While the U.S. Constitution does not explicitly define a "power" of judicial review, the authority for judicial review in the United States has been inferred from the Page 43 of 115

structure, provisions, and history of the Constitution. Two landmark decisions by the U.S. Supreme Court served to confirm the inferred constitutional authority for judicial review in the United States: In 1796, Hylton v. United States was the first case decided by the Supreme Court involving a direct challenge to the constitutionality of an act of Congress, the Carriage Act of 1794 which imposed a "carriage tax". The Court engaged in the process of judicial review by examining the plaintiff's claim that the carriage tax was unconstitutional. After review, the Supreme Court decided the Carriage Act was not unconstitutional. In 1803, Marbury v. Madison was the first Supreme Court case where the Court asserted its authority for judicial review to strike down a law as unconstitutional. At the end of his opinion in this decision, Chief Justice John Marshall maintained that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn oath of office to uphold the Constitution as instructed in Article Six of the Constitution. As of 2014, the United States Supreme Court has held 176 Acts of the U.S. Congress unconstitutional.

Constitutional Authorization The Constitution does not expressly provide that the federal judiciary has the power of judicial review. Rather, the power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI. The provisions relating to the federal judicial power in Article III state:

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The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. . . . The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. . . . In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

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The Supremacy Clause of Article VI states:

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This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. . . . [A]ll executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.

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The power of judicial review has been implied from these provisions based on the following reasoning. It is the inherent duty of the courts to determine the applicable law in any given case. The Supremacy Clause says "[t]his Constitution" is the "supreme law of the land." The Constitution therefore is the fundamental law of the United States. Federal statutes are the law of the land only when they are "made in pursuance" of the Constitution. State constitutions and statutes are valid only if they are consistent with the Constitution. Any law contrary to the Constitution is void. The federal judicial power extends to all cases "arising under this Constitution." As part of their inherent duty to determine the law, the federal courts have the duty to interpret and apply the Constitution and to decide whether a federal or state statute conflicts with the Constitution. All judges are bound to follow the Constitution. If there is a conflict, the federal courts have a duty to follow the Constitution and to treat the conflicting statute as unenforceable. The Supreme Court has final appellate jurisdiction in all cases arising under the Constitution, so the Supreme Court has the ultimate authority to decide whether statutes are consistent with the Constitution.

The Constitutional Convention During the debates at the Constitutional Convention, the Founding Fathers made a number of references to the concept of judicial review. The greatest number of these references occurred during the discussion of the proposal known as the Virginia Plan. The Virginia Plan included a "council of revision" that would have examined proposed new federal laws and would have accepted or rejected them, similar to today's presidential veto. The "council of revision" would have included the President along with some federal judges. Several delegates objected to the inclusion of federal judges on the council of revision. They argued the federal judiciary, through its power to declare laws unconstitutional, already had the opportunity to protect against legislative encroachment, and the judiciary did not need a second way to negate laws by participating in the council of revision. For example, Elbridge Gerry said federal judges "would have a sufficient check against encroachments on their own department by their exposition of the laws, which involved a power of deciding on their constitutionality. In some states the judges had actually set aside laws, as being against the constitution. This was done too with general approbation." Luther Martin said: "[A]s to the constitutionality of laws, that point will come before the judges in their official character. In this character they have a negative on the laws. Join them with the executive in the revision, and they will have a double negative." These and Page 45 of 115

other similar comments by the delegates indicated that the federal courts would have the power of judicial review. Other delegates argued that if federal judges were involved in the law-making process through participation on the council of revision, their objectivity as judges in later deciding on the constitutionality of those laws could be impaired. These comments indicated a belief that the federal courts would have the power to declare laws unconstitutional. At several other points in the debates at the Constitutional Convention, delegates made comments indicating their belief that under the Constitution, federal judges would have the power of judicial review. For example, George Mason said that federal judges "could declare an unconstitutional law void." James Madison said: "A law violating a constitution established by the people themselves, would be considered by the Judges as null & void." In all, fifteen delegates from nine states made comments regarding the power of the federal courts to review the constitutionality of laws. All but two of them supported the idea that the federal courts would have the power of judicial review. Some delegates to the Constitutional Convention did not speak about judicial review during the Convention, but did speak about it before or after the Convention. Including these additional comments by Convention delegates, scholars have found that twenty-five or twenty-six of the Convention delegates made comments indicating support for judicial review, while three to six delegates opposed judicial review. One review of the debates and voting records of the convention counted as many as forty delegates who supported judicial review, with four or five opposed. In their comments relating to judicial review, the framers indicated that the power of judges to declare laws unconstitutional was part of the system of separation of powers. The framers stated that the courts' power to declare laws unconstitutional would provide a check on the legislature, protecting against excessive exercise of legislative power.

The State Ratification Debates Judicial review was discussed in at least seven of the thirteen state ratifying conventions, and was mentioned by almost two dozen delegates. In each of these conventions, delegates asserted that the proposed Constitution would allow the courts to exercise judicial review. There is no record of any delegate to a state ratifying convention who indicated that the federal courts would not have the power of judicial review. For example, James Wilson asserted in the Pennsylvania ratifying convention that federal judges would exercise judicial review: "If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void. For the power of the Constitution predominates. Anything, therefore, that shall be enacted by Congress contrary thereto will not have the force of law." In the Connecticut ratifying convention, Oliver Ellsworth likewise described judicial review as a feature of the Constitution: "This Constitution defines the extent of the powers of the general Page 46 of 115

government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void." During the ratification process, supporters and opponents of ratification published pamphlets, essays, and speeches debating various aspects of the Constitution. Publications by over a dozen authors in at least twelve of the thirteen states asserted that under the Constitution, the federal courts would have the power of judicial review. There is no record of any opponent to the Constitution who claimed that the Constitution did not involve a power of judicial review. After reviewing the statements made by the founders, one scholar concluded: "The evidence from the Constitutional Convention and from the state ratification conventions is overwhelming that the original public meaning of the term 'judicial power' [in Article III] included the power to nullify unconstitutional laws."

The Federalist Papers The Federalist Papers, which were published in 1787â&#x20AC;&#x201C;1788 to promote ratification of the Constitution, made several references to the power of judicial review. The most extensive discussion of judicial review was in Federalist No. 78, written by Alexander Hamilton, which clearly explained that the federal courts would have the power of judicial review. Hamilton stated that under the Constitution, the federal judiciary would have the power to declare laws unconstitutional. Hamilton asserted that this was appropriate because it would protect the people against abuse of power by Congress:

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[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed

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by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.... [A]ccordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the Judicial tribunals to adhere to the latter and disregard the former.... [T]he courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments.

In Federalist No. 80, Hamilton rejected the idea that the power to decide the constitutionality of an act of Congress should lie with each of the states: "The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed." Consistent with the need for uniformity in interpretation of the Constitution, Hamilton explained in Federalist No. 82 that the Supreme Court has authority to hear appeals from the state courts in cases relating to the Constitution. The arguments against ratification by the Anti-Federalists agreed that the federal courts would have the power of judicial review, though the Anti-Federalists viewed this negatively. Robert Yates, writing under the pseudonym "Brutus", stated:

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[T]he judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and there is no power above them to set aside their judgment. . . . The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void.

The Judiciary Act of 1789 The first Congress passed the Judiciary Act of 1789, establishing the lower federal courts and specifying the details of federal court jurisdiction. Section 25 of the Judiciary Act provided for the Supreme Court to hear appeals from state courts when the state court decided that a federal statute was invalid, or when the state court upheld a state statute against a claim that the state statute was repugnant to the Constitution. This provision gave the Supreme Court the power to Page 48 of 115

review state court decisions involving the constitutionality of both federal statutes and state statutes. The Judiciary Act thereby incorporated the concept of judicial review.

Court Decisions from 1788 to 1803 Between Marbury the thirty-

the

ratification of the Constitution in 1788 and the decision in v. Madison in 1803, judicial review was employed in both federal and state courts. A detailed analysis has identified one state or federal cases during this time in which statutes were struck down as unconstitutional, and seven additional cases in which statutes were upheld but at least one judge concluded the statute was unconstitutional. The author of this analysis, Professor William Treanor, concluded: "The sheer number of these decisions not only belies the notion that the institution of judicial review was created by Chief Justice Marshall in Marbury, it also reflects widespread acceptance and application of the doctrine."

Several other cases involving judicial review issues reached the Supreme Court before the issue was definitively decided in Marbury in 1803. In Hayburn's Case, 2 U.S. (2 Dall.) 408 (1792), federal circuit courts held an act of Congress unconstitutional for the first time. Three federal circuit courts found that Congress had violated the Constitution by passing an act requiring circuit court judges to decide pension applications, subject to the review of the Secretary of War. These circuit courts found that this was not a proper judicial function under Article III. These three decisions were appealed to the Supreme Court, but the appeals became moot when Congress repealed the statute while the appeals were pending. In an unreported Supreme Court decision in 1794, United States v. Yale Todd, the Supreme Court reversed a pension that was awarded under the same pension act that had been at issue in Hayburn's Case. The Court apparently decided that the act designating judges to decide pensions was not constitutional because this was not a proper judicial function. This apparently was the first Supreme Court case to find an act of Congress unconstitutional. However, there was not an official report of the case and it was not used as a precedent. Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), was the first case decided by the Supreme Court that involved a challenge to the constitutionality of an act of Congress. It was argued that a federal tax on carriages violated the constitutional provision regarding "direct" taxes. The Supreme Court upheld the tax, finding it was constitutional. Although the Supreme Court did not strike down the act in question, the Court engaged in the process of judicial review by considering the constitutionality of the tax. The case was widely publicized at the time, and observers understood that the Court was testing the constitutionality of an act of Congress. Page 49 of 115

Because it found the statute valid, the Court did not have to assert that it had the power to declare a statute unconstitutional. In Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), the Supreme Court for the first time struck down a state statute. The Court reviewed a Virginia statute regarding pre-Revolutionary war debts and found that it was inconsistent with the peace treaty between the United States and Great Britain. Relying on the Supremacy Clause, the Court found the Virginia statute invalid. In Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798), the Supreme Court found that it did not have jurisdiction to hear the case because of the jurisdiction limitations of the Eleventh Amendment. This holding could be viewed as an implicit finding that the Judiciary Act of 1789, which would have allowed the Court jurisdiction, was unconstitutional in part. However, the Court did not provide any reasoning for its conclusion and did not say that it was finding the statute unconstitutional. In Cooper v. Telfair, 4 U.S. (4 Dall.) 14 (1800), Justice Chase stated: "It is indeed a general opinionâ&#x20AC;&#x201D;it is expressly admitted by all this bar and some of the judges have, individually in the circuits decided, that the Supreme Court can declare an act of Congress to be unconstitutional, and therefore invalid, but there is no adjudication of the Supreme Court itself upon the point."

Responses to the Kentucky and Virginia Resolutions In 1798, the Kentucky and Virginia legislatures passed a series of resolutions asserting that the states have the power to determine whether acts of Congress are constitutional. In response, ten states passed their own resolutions disapproving the Kentucky and Virginia resolutions. Six of these states took the position that the power to declare acts of Congress unconstitutional lies in the federal courts, not in the state legislatures. For example, Vermont's resolution stated: "It belongs not to state legislatures to decide on the constitutionality of laws made by the general government; this power being exclusively vested in the judiciary courts of the Union." Thus, five years before Marbury v. Madison, a number of state legislatures stated their understanding that under the Constitution, the federal courts possess the power of judicial review.

Marbury v. Madison The Supreme Court's landmark decision regarding judicial review is Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Marbury was the first Supreme Court decision to strike down an act of Congress as unconstitutional. Chief Justice John Marshall wrote the opinion for a unanimous Court. The case arose when William Marbury filed a lawsuit seeking an order (a "writ of mandamus") requiring the Secretary of State, James Madison, to deliver to Marbury a commission appointing him as a justice of the peace. Marbury filed his case directly in the Supreme Court, invoking the Court's "original jurisdiction", rather than filing in a lower court. Page 50 of 115

The constitutional issue involved the question of whether the Supreme Court had jurisdiction to hear the case. The Judiciary Act of 1789 gave the Supreme Court original jurisdiction in cases involving writs of mandamus. So, under the Judiciary Act, the Supreme Court would have had jurisdiction to hear Marbury's case. However, the Constitution describes the cases in which the Supreme Court has original jurisdiction, and does not include mandamus cases. The Judiciary Act therefore attempted to give the Supreme Court jurisdiction that was not "warranted by the Constitution." Marshall's opinion stated that in the Constitution, the people established a government of limited powers: "The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written." The limits established in the Constitution would be meaningless "if these limits may at any time be passed by those intended to be restrained." Marshall observed that the Constitution is "the fundamental and paramount law of the nation", and that it cannot be altered by an ordinary act of the legislature. Therefore, "an act of the Legislature repugnant to the Constitution is void." Marshall then discussed the role of the courts, which is at the heart of the doctrine of judicial review. It would be an "absurdity", said Marshall, to require the courts to apply a law that is void. Rather, it is the inherent duty of the courts to interpret and apply the Constitution, and to determine whether there is a conflict between a statute and the Constitution:

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It is emphatically the province and 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 that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the 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....

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Marshall stated that the courts are authorized by the provisions of the Constitution itself to "look into" the Constitution, that is, to interpret and apply it, and that they have the duty to refuse to enforce any laws that are contrary to the Constitution. Specifically, Article III provides that the federal judicial power "is extended to all cases arising under the Constitution." Article VI requires judges to take an oath "to support this Constitution." Article VI also states that only laws Page 51 of 115

"made in pursuance of the Constitution" are the law of the land. Marshall concluded: "Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument." Marbury long has been regarded as the seminal case with respect to the doctrine of judicial review. Some scholars have suggested that Marshall's opinion in Marbury essentially created judicial review. In his book The Least Dangerous Branch, Professor Alexander Bickel wrote:

“

[T]he institution of the judiciary needed to be summoned up out of the constitutional vapors, shaped, and maintained. And the Great Chief Justice, John Marshall—not single-handed, but first and foremost—was there to do it and did. If any social process can be said to have been 'done' at a given time, and by a given act, it is Marshall's achievement. The time was 1803; the act was the decision in the case of Marbury v. Madison.

”

Other scholars view this as an overstatement, and argue that Marbury was decided in a context in which judicial review already was a familiar concept. These scholars point to the facts showing that judicial review was acknowledged by the Constitution's framers, was explained in the Federalist Papers and in the ratification debates, and was used by both state and federal courts for more than twenty years before Marbury, including the Supreme Court in Hylton v. United States. One scholar concluded: "[B]efore Marbury, judicial review had gained wide support."

Judicial Review Post Marbury After the Court exercised its power of judicial review in Marbury, it avoided striking down a federal statute during the next fifty years. The court would not do so again until Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). However, the Supreme Court did exercise judicial review in other contexts. In particular, the Court struck down a number of state statutes that were contrary to the Constitution. The first case in which the Supreme Court struck down a state statute as unconstitutional was Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810). In a few cases, state courts took the position that their judgments were final and were not subject to review by the Supreme Court. They argued that the Constitution did not give the Supreme Court the authority to review state court decisions. They asserted that the Judiciary Act of 1789, which provided that the Supreme Court could hear certain appeals from state courts, was unconstitutional. In effect, these state courts were asserting that the principle of judicial review did not extend to allow federal review of state court decisions. This would have left the states free to adopt their own interpretations of the Constitution.

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The Supreme Court rejected this argument. In Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816), the Court held that under Article III, the federal courts have jurisdiction to hear all cases arising under the Constitution and laws of the United States, and that the Supreme Court has appellate jurisdiction in all such cases, whether those cases are filed in state or federal courts. The Court issued another decision to the same effect in the context of a criminal case, Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821). It is now well established that the Supreme Court may review decisions of state courts that involve federal law. The Supreme Court also has reviewed actions of the federal executive branch to determine whether those actions were authorized by acts of Congress or were beyond the authority granted by Congress. Judicial review is now well established as a cornerstone of constitutional law. As of 2014, the United States Supreme Court had held unconstitutional some 176 Acts of the U.S. Congress. Although judicial review has now become an established part of constitutional law in the United States, there are some who disagree with the doctrine. At the Constitutional Convention, neither proponents nor opponents of judicial review disputed that any government based on a written constitution requires some mechanism to prevent laws that violate that constitution from being made and enforced. Otherwise, the document would be meaningless, and the legislature, with the power to enact any laws whatsoever, would be the supreme arm of government (the British doctrine of parliamentary sovereignty). The delegates at the Convention differed with respect to the question of whether Congress or the judiciary should make determinations regarding constitutionality of statutes. Hamilton addressed this in Federalist No. 78, in which he explained the reasons that the federal judiciary has the role of reviewing the constitutionality of statutes:

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If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.

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Since the adoption of the Constitution, some have argued that the power of judicial review gives the courts the ability to impose their own views of the law, without an adequate check from any other branch of government. Robert Yates, a delegate to the Constitutional Convention from New York, argued during the ratification process in the Anti-Federalist Papers that the courts Page 53 of 115

would use the power of judicial review loosely to impose their views about the "spirit" of the Constitution:

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[I]n their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal.

”

In 1820, Thomas Jefferson expressed his opposition to the doctrine of judicial review:

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You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

”

In 1861, Abraham Lincoln touched upon the same subject, during his first inaugural address:

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[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

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Lincoln was alluding here to the case of Dred Scott v. Sandford, in which the Court had struck down a federal statute for the first time since Marbury v. Madison. It has been argued that the judiciary is not the only branch of government that may interpret the meaning of the Constitution. Article VI requires federal and state officeholders to be bound "by Oath or Affirmation, to support this Constitution." It has been argued that such officials may follow their own interpretations of the Constitution, at least until those interpretations have been tested in court. Some have argued that judicial review is unconstitutional. See W.W. Crosskey, Politics and the Constitution in the History of the United States (Chicago: 1953), chs. 27-29, with which compare Hart, Book Review, 67 Harv. L. Rev. 1456 (1954). A brief review of the debate on the subject is Westin, Introduction: Charles Beard and American Debate over Judicial Review, 1790-1961, in C. Beard, The Supreme Court and the Constitution (Englewood Cliffs: 1962 reissue of 1938 ed.), 1-34, and bibliography at 133-149. See more at: http://constitution.findlaw.com/article3/annotation13.html#f576 This theory is generally based on two arguments. First, the power of judicial review is not expressly delegated to the courts in the Constitution. The Tenth Amendment reserves to the states (or to the people) those powers not delegated to the federal government. The second argument is that the states alone have the power to ratify changes to the "supreme law" (the U.S. Constitution), and that the states should play some role in interpreting its meaning. Under this theory, allowing only federal courts to definitively conduct judicial review of federal law allows the national government to interpret its own restrictions as it sees fit, with no meaningful input from the ratifying power. The Contemporary Standard In the United States, unconstitutionality is the only ground for a federal court to strike down a federal statute. Justice Washington, speaking for the Marshall Court, put it this way in an 1829 case:

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We intend to decide no more than that the statute objected to in this case is not repugnant to the Constitution of the United States, and that unless it be so, this Court has no authority, under the 25th section of the judiciary act, to re-examine and to reverse the judgement of the supreme court of Pennsylvania in the present case.

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If a state statute conflicts with a valid federal statute, then courts may strike down the state statute as an unstatutable violation of the Supremacy Clause. But a federal court may not strike down a statute absent a violation of federal law or of the federal Constitution.

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Moreover, a suspicion or possibility of courts to strike down a statute. 78 that the standard of review should be Constitution. Anti-federalists agreed down federal statutes absent a conflict For example, Robert Yates, writing pseudonym "Brutus", asserted that general government [will] be to observe the laws made by the legislature not repugnant to constitution." These federal statutes struck down

unconstitutionality is not enough for American Alexander Hamilton explained in Federalist "irreconcilable variance" with the that courts would be unable to strike with the Constitution. under the "the courts of the under obligation general the

principlesâ&#x20AC;&#x201D;that can only be for

unconstitutionality and that the unconstitutionality must be clearâ&#x20AC;&#x201D; were very common views at the time of the framing of the Constitution. For example, George Mason explained during the constitutional convention that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course." For a number of years, the courts were relatively deferential to Congress. Justice Washington put it this way, in an 1827 case: "It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt." Although judges usually adhered to this principle that a statute could only be deemed unconstitutional in case of a clear contradiction until the twentieth century, this presumption of constitutionality weakened somewhat during the twentieth century, as exemplified by the Supreme Court's famous footnote four in United States v. Carolene Products Co., 304 U.S. 144 (1938), which suggested that statutes may be subjected to closer scrutiny in certain types of cases. Nevertheless, the federal courts have not departed from the principle that courts may only strike down statutes for unconstitutionality.

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Of course, the practical implication of this principle is that a court cannot strike down a statute, even if it recognizes that the statute is obviously poorly drafted, irrational, or arises from legislators' corrupt motives, unless the flaw in the statute rises to the level of a clear constitutional violation. In 2008, Justice John Paul Stevens reaffirmed this point in a concurring opinion: "[A]s I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: 'The Constitution does not prohibit legislatures from enacting stupid laws.'" In the federal system, courts may only decide actual cases or controversies; it is not possible to request the federal courts to review a law without at least one party having legal standing to engage in a lawsuit. This principle means that courts sometimes do not exercise their power of review, even when a law is seemingly unconstitutional, for want of jurisdiction. In some state courts, such as the Massachusetts Supreme Judicial Court, legislation may be referred in certain circumstances by the legislature or by the executive for an advisory ruling on its constitutionality prior to its enactment (or enforcement). The U.S. Supreme Court seeks to avoid reviewing the Constitutionality of an act where the case before it could be decided on other grounds. Justice Brandeis framed it thus (citations omitted):

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The Court developed, for its own governance in the cases within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are: 1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act. 2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case. 3. The Court will not formulate a rule of constitutional law broader than required by the precise facts it applies to. 4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed ofâ&#x20AC;Ś If a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. 5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. 6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits. Page 57 of 115

7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.

Statutory Limitations Although the Supreme Court continues to review the constitutionality of statutes, Congress and the states retain some power to influence what cases come before the Court. For example, the Constitution at Article III, Section 2, gives Congress power to make exceptions to the Supreme Court's appellate jurisdiction. The Supreme Court has historically acknowledged that its appellate jurisdiction is defined by Congress, and thus Congress may have power to make some legislative or executive actions unreviewable. This is known as jurisdiction stripping. Another way for Congress to limit judicial review was tried in January 1868, when a bill was proposed requiring a two-thirds majority of the Court in order to deem any Act of Congress unconstitutional. The bill was approved by the House, 116 to 39.[67] That measure died in the Senate, partly because the bill was unclear about how the bill's own constitutionality would be decided.[68] Many other bills have been proposed in Congress that would require a supermajority in order for the justices to exercise judicial review.[69] During the early years of the United States, a twothirds majority was necessary for the Supreme Court to exercise judicial review; because the Court then consisted of six members, a simple majority and a two-thirds majority both required four votes.[70] Currently, the constitutions of two states require a supermajority of supreme court justices in order to exercise judicial review: Nebraska (five out of seven justices) and North Dakota (four out of five justices).

In The Soviet Union In modern Russia, aspects and directions of development of judicial reform were formulated in the «Judicial Reform Concept», enacted by the Russian Parliament on October 24, 1991. This document still remains legally valid and applicable. Valery Zorkin stressed that "the «separation of powers» principle, also proclaimed in the Constitution of the Russian Federation, requires observance of judicial independence. And such independence requires proper funding of the courts and their activities. It is well known that Russian courts remain under-funded. However, the cumulative economic costs suffered by both state and private enterprises as the result of under-performance by various judicial institutions, especially by the courts of general jurisdiction and the arbitration courts, is at least twice the order of magnitude as the financial burden carried by the state and society in financing such judicial institutions. The elimination of under-funding of the courts would definitely improve the efficiency of their work and be worthwhile. Page 58 of 115

Taking into account the specifics of historical developments in Russia, one may assert that without undertaking a large-scale legal reform it would be extremely difficult to succeed concurrently with judicial reform. It is necessary now to start unfolding a full-scale legal reform, which has to be completed by the year 2020. The official public presentation and implementation of such legal reform should become the prime responsibility of executive and legislative authorities. The program of legal reform needs to be adopted in the form of a legislative act.

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Rule of Law The Rule of Law (also known as Nomocracy) is the legal principle that law should govern a nation, as opposed to arbitrary decisions by individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behavior, including behavior of government officials. The phrase can be traced back to 16th century England, and it was popularized in the 19th century by British jurist A. V. Dicey. The concept was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern". Rule of law implies that every citizen is subject to the law, including law makers themselves. In this sense, it stands in contrast to an autocracy, collective leadership, dictatorship, or oligarchy where the rulers are held above the law (which is not necessary by definition but which is typical). Lack of the rule of law can be found in democracies and dictatorships, and can happen because of neglect or ignorance of the law, corruption, or lack of corrective mechanisms for administrative abuse, such as an independent judiciary with a rule-of-law culture, a practical right to petition for redress of grievances, or elections. Although credit for popularizing the expression "the rule of law" in modern times is usually given to A. V. Dicey, development of the legal concept can be traced through history to many ancient civilizations, including ancient Greece, China, Mesopotamia, India and Rome.

Antiquity In the West, the ancient Greeks initially regarded the best form of government as rule by the best men. Plato advocated a benevolent monarchy ruled by an idealized philosopher king, who was above the law. Plato nevertheless hoped that the best men would be good at respecting established laws, explaining that "Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state." More than Plato attempted to do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and serving the laws. In other words, Aristotle advocated the rule of law: It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.

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According to the Roman statesman Cicero, "We are all servants of the laws in order that we may be free." During the Roman Republic, controversial magistrates might be put on trial when their terms of office expired. Under the Roman Empire, the sovereign was personally immune (legibus solutus), but those with grievances could sue the treasury. In China, members of the school of legalism during the 3rd century BC argued for using law as a tool of governance, but they promoted "rule by law" as opposed to "rule of law", meaning that they placed the aristocrats and emperor above the law. In contrast, the Huang-Lao school of Daoism rejected legal positivism in favor of a natural law that even the ruler would be subject to. There has recently been an effort to reevaluate the influence of the Bible on Western constitutional law. In the Old Testament, there was some language in Deuteronomy imposing restrictions on the Jewish king, regarding such things as how many wives he could have, and how many horses he could own for his personal use. According to Professor Bernard M. Levinson, "This legislation was so utopian in its own time that it seems never to have been implemented...." The Deuteronomic social vision may have influenced opponents of the divine right of kings, including Bishop John Ponet in sixteenth-century England.

Middle Ages In Islamic jurisprudence rule of law was formulated in the seventh century, so that no official could claim to be above the law, not even the caliph. However, this was not a reference to secular law, but to Islamic religious law in the form of Sharia law. In 1215, Archbishop Stephen Langton gathered the Barons in England and forced King John and future sovereigns and magistrates back under the rule of law, preserving ancient liberties by the Magna Carta in return for exacting taxes. This foundation for constitution was carried into the Constitution of the United States.

Early Modern Period The first known use of this English phrase occurred around 1500 A.D. Another early example of the phrase "rule of law" is found in a petition to James I of England in 1610, from the House of Commons: Amongst many other points of happiness and freedom which your majesty's subjects of this kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is none which they have accounted more dear and precious than this, to be guided and governed by the certain rule of the law which giveth both to the head and members that which of right belongeth to them, and not by any uncertain or arbitrary form of government....

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In 1607, English Chief Justice Sir Edward Coke said in the Case of Prohibitions (according to his own report) "that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debed esse sub homine, sed sub Deo et lege (That the King ought not to be under any man but under God and the law.)." Among the first modern authors to give the principle theoretical foundations was Samuel Rutherford in Lex, Rex (1644). The title, Latin for "the law is king", subverts the traditional formulation rex lex ("the king is law"). John Locke also discussed this issue in his Second Treatise of Government (1690). The principle was also discussed by Montesquieu in The Spirit of the Laws (1748). The phrase "rule of law" appears in Samuel Johnson's Dictionary (1755). In 1776, the notion that no one is above the law was popular during the founding of the United States. For example, Thomas Paine wrote in his pamphlet Common Sense that "in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other." In 1780, John Adams enshrined this principle in the Massachusetts Constitution by seeking to establish "a government of laws and not of men."

Categorization The Oxford English Dictionary has defined "rule of law" this way: â&#x20AC;&#x153;The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.â&#x20AC;?

Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right. Despite wide use by politicians, judges and academics, the rule of law has been described as "an exceedingly elusive notion" According to political theorist Judith N. Shklar, "the phrase 'the Rule Page 63 of 115

of Law' has become meaningless thanks to ideological abuse and general over-use", but nevertheless this phrase has in the past had specific and important meanings. Among modern legal theorists, one finds that at least two principal conceptions of the rule of law can be identified: a formalist or "thin" definition, and a substantive or "thick" definition; one occasionally encounters a third "functional" conception. Formalist definitions of the rule of law do not make a judgment about the "justness" of law itself, but define specific procedural attributes that a legal framework must have in order to be in compliance with the rule of law. Substantive conceptions of the rule of law go beyond this and include certain substantive rights that are said to be based on, or derived from, the rule of law. Most legal theorists believe that the rule of law has purely formal characteristics, meaning that the law must be publicly declared, with prospective application, and possess the characteristics of generality, equality, and certainty, but there are no requirements with regard to the content of the law. Others, including a few legal theorists, believe that the rule of law necessarily entails protection of individual rights. Within legal theory, these two approaches to the rule of law are seen as the two basic alternatives, respectively labelled the formal and substantive approaches. Still, there are other views as well. Some believe that democracy is part of the rule of law. The "formal" interpretation is more widespread than the "substantive" interpretation. Formalists hold that the law must be prospective, well-known, and have characteristics of generality, equality, and certainty. Other than that, the formal view contains no requirements as to the content of the law. This formal approach allows laws that protect democracy and individual rights, but recognizes the existence of "rule of law" in countries that do not necessarily have such laws protecting democracy or individual rights. The substantive interpretation holds that the rule of law intrinsically protects some or all individual rights. The functional interpretation of the term "rule of law", consistent with the traditional English meaning, contrasts the "rule of law" with the "rule of man." According to the functional view, a society in which government officers have a great deal of discretion has a low degree of "rule of law", whereas a society in which government officers have little discretion has a high degree of "rule of law". Upholding the rule of law can sometimes require the punishment of those who commit offenses that are justifiable under natural law but not statutory law. The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable. The ancient concept of rule of law can be distinguished from rule by law, according to political science professor Li Shuguang: "The difference....is that, under the rule of law, the law is preeminent and can serve as a check against the abuse of power. Under rule by law, the law is a mere tool for a government, that suppresses in a legalistic fashion."

Variations The rule of law has been considered as one of the key dimensions that determine the quality and good governance of a country. Research, like the Worldwide Governance Indicators, defines the Page 64 of 115

rule of law as: "the extent to which agents have confidence and abide by the rules of society, and in particular the quality of contract enforcement, the police and the courts, as well as the likelihood of crime or violence." Based on this definition the Worldwide Governance Indicators project has developed aggregate measurements for the rule of law in more than 200 countries, as seen in the map below. A government based on the rule of law can be called a "nomocracy", from the Greek nomos (law) and kratos (power or rule).

Europe Rule of law in the United Kingdom is a core principle of the way the country is governed. In the 19th century, A. V. Dicey, a constitutional scholar and lawyer, wrote of the twin pillars of the British constitution in his classic work Introduction to the Study of the Law of the Constitution (1885). These pillars are the principle of Parliamentary sovereignty and the rule of law. In Finland, the constitution explicitly requires rule of law by stipulating that "the exercise of public powers shall be based on an Act. In all public activity, the law shall be strictly observed."

United States All government officers of the United States, including the President, the Justices of the Supreme Court, state judges and legislators, and all members of Congress, pledge first and foremost to uphold the Constitution. These oaths affirm that the rule of law is superior to the rule of any human leader. At the same time, the federal government has considerable discretion: the legislative branch is free to decide what statutes it will write, as long as it stays within its enumerated powers and respects the constitutionally protected rights of individuals. Likewise, the judicial branch has a degree of judicial discretion, and the executive branch also has various discretionary powers including prosecutorial discretion. Scholars continue to debate whether the U.S. Constitution adopted a particular interpretation of the "rule of law," and if so, which one. For example, Law Professor John Harrison asserts that the word "law" in the Constitution is simply defined as that which is legally binding, rather than being "defined by formal or substantive criteria," and therefore judges do not have discretion to decide that laws fail to satisfy such unwritten and vague criteria. Law Professor Frederick Mark Gedicks disagrees, writing that Cicero, Augustine, Thomas Aquinas, and the framers of the U.S. Constitution believed that an unjust law was not really a law at all. Some modern scholars contend that the rule of law has been corroded during the past century by the instrumental view of law promoted by legal realists such as Oliver Wendell Holmes and Page 65 of 115

Roscoe Pound. For example, Professor Brian Tamanaha asserts: "The rule of law is a centuriesold ideal, but the notion that law is a means to an end became entrenched only in the course of the nineteenth and twentieth centuries." Others argue that the rule of law has survived but was transformed to allow for the exercise of discretion by administrators. For much of American history, the dominant notion of the rule of law, in this setting, has been some version of A. V. Dicey's: ―no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts of the land.‖ That is, individuals should be able to challenge an administrative order by bringing suit in a court of general jurisdiction. As the dockets of worker compensation commissions, public utility commissions and other agencies burgeoned, it soon became apparent that letting judges decide for themselves all the facts in a dispute (such as the extent of an injury in a worker's compensation case) would overwhelm the courts and destroy the advantages of specialization that led to the creation of administrative agencies in the first place. Even Charles Evans Hughes, a Chief Justice of the United States, believed ―you must have administration, and you must have administration by administrative officers.‖ By 1941, a compromise had emerged. If administrators adopted procedures that moreor-less tracked "the ordinary legal manner" of the courts, further review of the facts by "the ordinary Courts of the land" was unnecessary. That is, if you had your "day in commission," the rule of law did not require a further "day in court." Thus Dicey's rule of law was recast into a purely procedural form. James Wilson said during the Philadelphia Convention in 1787 that, "Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect." George Mason agreed that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as judges to give it a free course." Chief Justice John Marshall (joined by Justice Joseph Story) took a similar position in 1827: "When its existence as law is denied, that existence cannot be proved by showing what are the qualities of a law."

Asia East Asian cultures are influenced by two schools of thought, Confucianism, which advocated good governance as rule by leaders who are benevolent and virtuous, and Legalism, which advocated strict adherence to law. The influence of one school of thought over the other has varied throughout the centuries. One study indicates that throughout East Asia, only South Korea, Singapore, Japan, Taiwan and Hong Kong have societies that are robustly committed to a law-bound state. According to Awzar Thi, a member of the Asian Human Rights Commission, the rule of law in Thailand, Cambodia, and most of Asia is weak or nonexistent: Apart from a number of states and territories, across the continent there is a huge gulf between the rule of law rhetoric and reality. In Thailand, the police force is an organized crime gang. In Cambodia, judges are proxies for the ruling political party ... That a judge may harbor political prejudice or apply the law unevenly are the smallest worries for an ordinary criminal defendant in Asia. More likely ones are: Will the police fabricate the evidence? Will the prosecutor bother Page 66 of 115

to show up? Will the judge fall asleep? Will I be poisoned in prison? Will my case be completed within a decade? In countries such as China and Vietnam, the transition to a market economy has been a major factor in a move toward the rule of law, because a rule of law is important to foreign investors and to economic development. It remains unclear whether the rule of law in countries like China and Vietnam will be limited to commercial matters or will spill into other areas as well, and if so whether that spillover will enhance prospects for related values such as democracy and human rights. The rule of law in China has been widely discussed and debated by both legal scholars and politicians in China. In Thailand, a kingdom that has had a constitution since the initial attempt to overthrow the absolute monarchy system in 1932, the rule of law has been more of a principle than actual practice. Ancient prejudices and political bias have been present in the three branches of government with each of their foundings, and justice has been processed formally according to the law but in fact more closely aligned with royalist principles that are still advocated in the 21st century. In November 2013, Thailand faced still further threats to the rule of law when the executive branch rejected a supreme court decision over how to select senators. In India, the longest constitutional text in the history of the world has governed that country since 1950. Although the Constitution of India may have been intended to provide details that would limit the opportunity for judicial discretion, the more text there is in a constitution the greater opportunity the judiciary may have to exercise judicial review. According to Indian journalist Harish Khare, "The rule of law or rather the Constitution [is] in danger of being supplanted by the rule of judges." Japan had centuries of tradition prior to World War II, during which there were laws, but they did not provide a central organizing principle for society, and they did not constrain the powers of government (Boadi, 2001). As the 21st century began, the percentage of people who were lawyers and judges in Japan remained very low relative to western Europe and the United States, and legislation in Japan tended to be terse and general, leaving much discretion in the hands of bureaucrats.

Worldwide Organizational Promotion Various organizations are involved in promoting the rule of law.

International Commission of Jurists In 1959, an international gathering of over 185 judges, lawyers, and law professors from 53 countries, meeting in New Delhi and speaking as the International Commission of Jurists, made a declaration as to the fundamental principle of the rule of law. This was the Declaration of Delhi. They declared that the rule of law implies certain rights and freedoms, that it implies an independent judiciary, and that it implies social, economic and cultural conditions conducive to human dignity. The Declaration of Delhi did not, however, suggest that the rule of law requires legislative power to be subject to judicial review. Page 67 of 115

United Nations The Secretary-General of the United Nations defines the rule of law as:

a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. The General Assembly has considered rule of law as an agenda item since 1992, with renewed interest since 2006 and has adopted resolutions at its last three sessions. The Security Council has held a number of thematic debates on the rule of law, and adopted resolutions emphasizing the importance of these issues in the context of women, peace and security, children in armed conflict, and the protection of civilians in armed conflict. The Peacebuilding Commission has also regularly addressed rule of law issues with respect to countries on its agenda. The Vienna Declaration and Programme of Action also requires the rule of law be included in human rights education.

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International Bar Association The Council of the International Bar Association passed a resolution in 2009 endorsing a substantive or "thick" definition of the rule of law: An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process, are all unacceptable. The Rule of Law is the foundation of a civilised society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The IBA calls upon all countries to respect these fundamental principles. It also calls upon its members to speak out in support of the Rule of Law within their respective communities.

World Justice Project As used by the World Justice Project, a non-profit organization committed to advancing the rule of law around the world, the rule of law refers to a rules-based system in which the following four universal principles are upheld: 1. The government and its officials and agents are accountable under the law; 2. The laws are clear, publicized, stable, fair, and protect fundamental rights, including the security of persons and property; 3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient; 4. Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve. The World Justice Project has developed an Index to measure the extent to which countries adhere to the rule of law in practice. The WJP Rule of Law Index is composed of 9 factors and 52 sub-factors, and covers a variety of dimensions of the rule of law â&#x20AC;&#x201D;such as whether government officials are accountable under the law, and whether legal institutions protect fundamental rights and allow ordinary people access to justice.

Economic Impacts One important aspect of the rule-of-law initiatives is the study and analysis of the rule of lawâ&#x20AC;&#x2122;s impact on economic development. The rule-of-law movement cannot be fully successful in transitional and developing countries without an answer to the question: does the rule of law matter for economic development or not? Constitutional economics is the study of the Page 69 of 115

compatibility of economic and financial decisions within existing constitutional law frameworks, and such a framework includes government spending on the judiciary, which, in many transitional and developing countries, is completely controlled by the executive. It is useful to distinguish between the two methods of corruption of the judiciary: corruption by the executive branch, in contrast to corruption by private actors. The standards of constitutional economics can be used during annual budget process, and if that budget planning is transparent then the rule of law may benefit. The availability of an effective court system, to be used by the civil society in situations of unfair government spending and executive impoundment of previously authorized appropriations, is a key element for the success of the rule-of-law endeavor. The Rule of Law is especially important as an influence on the economic development in developing and transitional countries. To date, the term â&#x20AC;&#x2022;rule of lawâ&#x20AC;&#x2013; has been used primarily in the English-speaking countries, and it is not yet fully clarified even with regard to such wellestablished democracies as, for instance, Sweden, Denmark, France, Germany, or Japan. A common language between lawyers of common law and civil law countries as well as between legal communities of developed and developing countries is critically important for research of links between the rule of law and real economy. The modern economist F. A. Hayek analyzed how the Rule of Law might be beneficial to the free market. Hayek proposed that under the Rule of Law individuals would be able to make wise investments and future plans with some confidence in a successful return on investment when he stated: "under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action. Within the known rules of the game the individual is free to pursue his personal ends and desires, certain that the powers of government will not be used deliberately to frustrate his efforts." Hayek defined the Rule of Law as the opposite of arbitrary government: "The distinction we have drawn before between the creation of a permanent framework of laws within which the productive activity is guided by individual decisions and the direction of economic activity by a central authority is thus really a particular case of the more general distinction between the Rule of Law and arbitrary government. Under the first the government confines itself to fixing rules determining the conditions under which the available resources may be used, leaving to the individuals the decision for what ends they are to be used. Under the second the government directs the use of the means of production to particular ends. The first type of rules can be made in advance, in the shape of formal rules which do not aim at the wants and needs of particular people. They are intended to be merely instrumental in the pursuit of people's various individual ends. And they are, or ought to be, intended for such long periods that it is impossible to know whether they will assist particular people more than others. They could almost be described as a kind of instrument of production, helping people to predict the behavior of those with whom they must collaborate, rather than as efforts toward the satisfaction of particular needs."

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Rule of Higher Law The Rule According To A Higher Law means that no law may be enforced by the government unless it conforms with certain universal principles (written or unwritten) of fairness, morality, and justice. Thus, the rule according to a higher law may serve as a practical legal criterion to qualify the instances of political or economical decision-making, when a government, even though acting in conformity with clearly defined and properly enacted legal rules, still produces results which many observers find unfair or unjust. "Higher law" can be interpreted in this context as the divine or natural law or basic legal values, established in the international law, – the choice depending on the viewpoint. But this is definitely a Law above the law. And it is in this capacity that it possesses the equal legal value for both the common and civil law jurisdictions, as opposed to natural law which is largely associated with common law. "To recognize the necessary connection between the rule of law as an ideal and well-constructed constitutional government does not and should not be taken to imply that all states can or should maintain the same constitutional structures in practice". The rule according to higher law is a practical approach to the implementation of the higher law theory which creates a bridge of mutual understanding (with regard to universal legal values) between the English language doctrine of the rule of law, traditional for the countries of common law, and the originally German doctrine of Rechtsstaat, translated into other languages of continental Europe as État de droit (Fr.), Estado de derecho (Sp.), Stato di diritto (It.), and Правовое государство (Ru.). The latter doctrine is the product of continental European legal thought which had adopted it from German legal philosophy. Its name can be translated into English as ―legal state‖ or "state of law" or "state of rights" or "constitutional state" – consistently meaning the state in which the exercise of governmental power is kept in check by the higher law rather than by the changeable law established by this state. Amartya Sen mentioned that the legal theorists in ancient India used term of classical Sanscrit "nyaya" in the sense of not just a matter of judging institutions and rules, but of judging the societies themselves. Before the U.S. Civil War, African Americans were legally denied equal rights and freedoms pursuant to formally valid codes prescribing the relations between master and slave. Although these codes were de jure fully suitable for application in legal practice, their enforcement by the then U.S. government de facto violated basic human rights of a significant part of the population. William H. Seward famously proclaimed that slavery is forbidden under "a higher law than the Constitution." Page 72 of 115

Generally speaking, the occurrence of such "justly enacted unjust laws" fully depends on the stance taken by the country's political leadership towards the rule of law principle. In some countries, the political leaders assert that the rule of law is purely a procedural concept. Therefore, they argue that any government may strip its subjects of their fundamental freedoms or infringe their vital interests so long as this is done by way of a duly implemented legal mechanism. For example, at the Nuremberg trials, in an attempt to justify their crimes against Jewish and Romany population of Europe during World War II, some of the former leaders of Nazi Germany argued that they had broken none of the laws effective when Hitler had been in power. It was only by invoking the rule according to a higher law that the Allied prosecutors were able to legitimately overcome such defenses. In other countries, conversely, the political leaders assert that all written laws must be kept in line with the universal principles of morality, fairness, and justice. These leaders argue that, as a necessary corollary to the axiom that "no one is above the law," the rule of law requires the government to treat all persons equally under the law. However, the proclaimed right to equal treatment is susceptible to instantly becoming void each time the government denies a sufficient level of respect, dignity, and autonomy to a certain class of individuals or to human rights in general." Therefore, the unwritten and universally self-explanatory principles of equality, autonomy, dignity, and respect are said to overrule conventional written laws enacted by the government. It is these principles that are often referred to as "natural law." They also constitute the basis of the "higher law theory."

Constitutional Governance The Rechtsstaat doctrine (Legal state, State of right, Constitutional state, Constitutional government) was first introduced by the German philosopher Immanuel Kant in his latest works completed after the U.S. and French constitutions had been adopted in the late 18th century. Kant’s approach is based on the supremacy of country’s written constitution created using principles of the Higher Law. This supremacy meant creating guarantees for the implementation of his central idea: a permanently peaceful life as a basic condition for the happiness and prosperity of the citizens. Kant was basing his doctrine exclusively on the idea of constitutionalism and constitutional government. Kant had formulated the main problem of constitutionalism as an instrument for the practical implementation of the Higher Law as follows, ―The constitution of a state is eventually based on the morals of its citizens, which, in its turn, is based on the goodness of this constitution.‖ This idea of Kant’s has become the foundation for the constitutional theory of the 21st century. The Legal state concept is based on the ideas introduced by Immanuel Kant, for example, in his Groundwork of the Metaphysic of Morals: ―The task of establishing a universal and permanent peaceful life is not only a part of theory of law within the framework of pure reason, but per se an absolute and ultimate goal. To achieve this goal, a state must become the community of a large number of people, living provided with legislative guarantees of their property rights secured by a common constitution. The supremacy of this constitution… must be derived a priori from the considerations for achievement of the Page 73 of 115

absolute ideal in the most just and fair organization of people’s life under the aegis of public law.‖ The Russian legal system, born in the 19th century as a result of the transformations initiated by the reforms of the Emperor Alexander II, was (and still is) based primarily upon the German legal tradition. It was from the latter that Russia had adopted the doctrine of Rechtsstaat, which literally translates as "Legal State." Its closest English analogue is "the rule of law." The Russian Legal state concept adopts the written constitution as the country's supreme law (the rule of constitution). It is a fundamental but undefined principle that appears in the very first dispositive provision of Russia’s post-Communist constitution: "The Russian Federation – Russia – constitutes a democratic federative legal state with a republican form of governance." Similarly, the very first dispositive provision of Ukraine’s Constitution declares that "Ukraine is a sovereign and independent, democratic, social, legal state." Hence, the effort to invest meaning to the "Legal State" definition is anything but theoretical. Valery Zorkin, President of the Constitutional Court of Russia, wrote in 2003, "Becoming a legal state has long been our ultimate goal, and we have certainly made serious progress in this direction over the past several years. However, no one can say now that we have reached this destination. Such a legal state simply cannot exist without a lawful and just society. Here, as in no other sphere of our life, the state reflects the level of maturity reached by the society." The Russian concept of Legal state has adopted many segments of constitutional economics which serves as a practical implementation of the higher law theory in economics. Economist James M. Buchanan argues that, in the framework of constitutional government, any governmental intervention or regulation must be conditioned by the three following assumptions. First, every failure of the market economy to function smoothly and perfectly can be corrected by governmental intervention. Second, those holding political office and manning the bureaucracies are altruistic upholders of the public interest, unconcerned with their own personal economic well-being. And third, changing the government responsibilities towards more intervention and control will not profoundly and perversely affect the social and economic life. Buchanan rejects "any organic conception of the state as superior in wisdom, to the individuals who are its members." This philosophical position is, in fact, the very subject matter of constitutional economics. A constitutional economics approach allows for a combined economic and constitutional analysis, helping to avoid a one-dimensional understanding. Buchanan, together with Kant, believes that a constitution in its capacity as the Higher Law, intended for use by at least several generations of citizens, must be able to adjust itself for pragmatic economic decisions, while balancing interests of the state and society against those of individuals, with their constitutional rights to personal freedom and private happiness. Buchanan also outlines importance of protection of the moral principles underlying constitutional norms. He writes that "the ethics of constitutional citizenship is not directly comparable to ethical behavior in interaction with other persons within the constraints imposed by the rules of an existing regime. An individual may be fully responsible, in the standard ethical sense, and yet fail to meet the ethical requirement of constitutional citizenship."[ Page 74 of 115

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Political Corruption of The Judiciary Political Corruption is the use of powers by government officials for illegitimate private gain. An illegal act by an officeholder constitutes political corruption only if the act is directly related to their official duties, is done under color of law or involves trading in influence. Forms of corruption vary, but include bribery, extortion, cronyism, nepotism, patronage, graft, and embezzlement. Corruption may facilitate criminal enterprise such as drug trafficking, money laundering, and human trafficking, though is not restricted to these activities. Misuse of government power for other purposes, such as repression of political opponents and general police brutality, is not considered political corruption. Neither are illegal acts by private persons or corporations not directly involved with the government. The activities that constitute illegal corruption differ depending on the country or jurisdiction. For instance, some political funding practices that are legal in one place may be illegal in another. In some cases, government officials have broad or ill-defined powers, which make it difficult to distinguish between legal and illegal actions. Worldwide, bribery alone is estimated to involve over 1 trillion US dollars annually. A state of unrestrained political corruption is known as a kleptocracy, literally meaning "rule by thieves". Some forms of corruption â&#x20AC;&#x201C; now called "institutional corruption" â&#x20AC;&#x201C; are distinguished from bribery and other kinds of obvious personal gain. A similar problem of corruption arises in any institution that depends on financial support from people who have interests that may conflict with the primary purpose of the institution.

Judicial Corruption There are two methods of corruption of the judiciary: the state (through budget planning and various privileges), and the private. Budget of the judiciary in many transitional and developing countries is almost completely controlled by the executive. The latter undermines the separation of powers, as it creates a critical financial dependence of the judiciary. The proper national wealth distribution including the government spending on the judiciary is subject of the constitutional economics.

Effects on Politics, Administration, and Institutions In politics, corruption undermines democracy and good governance by flouting or even subverting formal processes. Corruption in elections and in the legislature reduces accountability and distorts representation in policymaking; corruption in the judiciary compromises the rule of law; and corruption in public administration results in the inefficient provision of services. It violates a basic principle of republicanism regarding the centrality of civic virtue. More Page 76 of 115

generally, corruption erodes the institutional capacity of government if procedures are disregarded, resources are siphoned off, and public offices are bought and sold. Corruption undermines the legitimacy of government and such democratic values as trust and tolerance. Recent evidence suggests that variation in the levels of corruption amongst high-income democracies can vary significantly depending on the level of accountability of decision-makers. Evidence from fragile states also shows that corruption and bribery can adversely impact trust in institutions.

Economic Effects In the private sector, corruption increases the cost of business through the price of illicit payments themselves, the management cost of negotiating with officials and the risk of breached agreements or detection. Although some claim corruption reduces costs by cutting bureaucracy, the availability of bribes can also induce officials to contrive new rules and delays. Openly removing costly and lengthy regulations are better than covertly allowing them to be bypassed by using bribes. Where corruption inflates the cost of business, it also distorts the playing field, shielding firms with connections from competition and thereby sustaining inefficient firms. Corruption also generates economic distortions in the public sector by diverting public investment into capital projects where bribes and kickbacks are more plentiful. Officials may increase the technical complexity of public sector projects to conceal or pave the way for such dealings, thus further distorting investment. Corruption also lowers compliance with construction, environmental, or other regulations, reduces the quality of government services and infrastructure, and increases budgetary pressures on government. Economists argue that one of the factors behind the differing economic development in Africa and Asia is that in Africa, corruption has primarily taken the form of rent extraction with the resulting financial capital moved overseas rather than invested at home (hence the stereotypical, but often accurate, image of African dictators having Swiss bank accounts). In Nigeria, for example, more than $400 billion was stolen from the treasury by Nigeria's leaders between 1960 and 1999. University of Massachusetts Amherst researchers estimated that from 1970 to 1996, capital flight from 30 Sub-Saharan countries totaled $187bn, exceeding those nations' external debts. (The results, expressed in retarded or suppressed development, have been modeled in theory by economist Mancur Olson.) In the case of Africa, one of the factors for this behavior was political instability, and the fact that new governments often confiscated previous government's corruptly obtained assets. This encouraged officials to stash their wealth abroad, out of reach of any future expropriation. In contrast, Asian administrations such as Suharto's New Order often took a cut on business transactions or provided conditions for development, through infrastructure investment, law and order, etc.

Environmental and Social Effect Corruption is often most evident in countries with the smallest per capita incomes, relying on foreign aid for health services. However, political exploitation of these funds have been noted to occur in the past, especially in the Sub-Saharan African nations, where it was reported in the 2006 World Bank Report that about half of the funds that were donated for health usages, were Page 77 of 115

never invested into the health sectors or given to those needing medical attention. Instead, they were expended through "counterfeit drugs, siphoning off of drugs to the black market, and payments to ghost employees". Ultimately, there is a sufficient amount of money for health in developing countries, but this cash is given to the wrong hands, which leads to political and governmental corruption that takes away medical attention necessary for the citizens of these regions, and rather, used for personal gain. Corruption facilitates environmental destruction. Corrupt countries may formally have legislation to protect the environment, it cannot be enforced if officials can easily be bribed. The same applies to social rights worker protection, unionization prevention, and child labor. Violation of these laws rights enables corrupt countries to gain illegitimate economic advantage in the international market. The Nobel Prize-winning economist Amartya Sen has observed that "there is no such thing as an apolitical food problem." While drought and other naturally occurring events may trigger famine conditions, it is government action or inaction that determines its severity, and often even whether or not a famine will occur. Governments with strong tendencies towards kleptocracy can undermine food security even when harvests are good. Officials often steal state property. In Bihar, India, more than 80% of the subsidized food aid to poor is stolen by corrupt officials. Similarly, food aid is often robbed at gunpoint by governments, criminals, and warlords alike, and sold for a profit. The 20th century is full of many examples of governments undermining the food security of their own nations â&#x20AC;&#x201C; sometimes intentionally.

Effects on Humanitarian Aid The scale of humanitarian aid to the poor and unstable regions of the world grows, but it is highly vulnerable to corruption, with food aid, construction and other highly valued assistance as the most at risk. Food aid can be directly and physically diverted from its intended destination, or indirectly through the manipulation of assessments, targeting, registration and distributions to favor certain groups or individuals. Elsewhere, in construction and shelter, there are numerous opportunities for diversion and profit through substandard workmanship, kickbacks for contracts and favoritism in the provision of valuable shelter material. Thus while humanitarian aid agencies are usually most concerned about aid being diverted by including too many, recipients themselves are most concerned about exclusion. Access to aid may be limited to those with connections, to those who pay bribes or are forced to give sexual favors. Equally, those able to do so may manipulate statistics to inflate the number of beneficiaries and siphon off additional assistance. Page 78 of 115

Other Areas: Health, Public Safety, Education, Trade Unions, Etc. Corruption is not specific to poor, developing, or transition countries. In western countries, cases of bribery and other forms of corruption in all possible fields exist: under-the-table payments made to reputed surgeons by patients attempting to be on top of the list of forthcoming surgeries, bribes paid by suppliers to the automotive industry in order to sell low-quality connectors used for instance in safety equipment such as airbags, bribes paid by suppliers to manufacturers of defibrillators (to sell low-quality capacitors), contributions paid by wealthy parents to the "social and culture fund" of a prestigious university in exchange for it to accept their children, bribes paid to obtain diplomas, financial and other advantages granted to unionists by members of the executive board of a car manufacturer in exchange for employer-friendly positions and votes, etc. Examples are endless. These various manifestations of corruption can ultimately present a danger for the public health; they can discredit specific, essential institutions or social relationships. Corruption can also affect the various components of sports activities (referees, players, medical and laboratory staff involved in anti-doping controls, members of national sport federation and international committees deciding about the allocation of contracts and competition places). Cases exist against (members of) various types of non-profit and non-government organizations, as well as religious organizations. Ultimately, the distinction between public and private sector corruption sometimes appears rather artificial, and national anti-corruption initiatives may need to avoid legal and other loopholes in the coverage of the instruments.

Types of Corruption Bribery A bribe is a payment given personally to a government official in exchange of his use of official powers. Bribery requires two participants: one to give the bribe, and one to take it. Either may initiate the corrupt offering; for example, a customs official may demand bribes to let through allowed (or disallowed) goods, or a smuggler might offer bribes to gain passage. In some countries the culture of corruption extends to every aspect of public life, making it extremely difficult for individuals to stay in business without resorting to bribes. Bribes may be demanded in order for an official to do something he is already paid to do. They may also be demanded in order to bypass laws and regulations. In addition to using bribery for private financial gain, they are also used to intentionally and maliciously cause harm to another (i.e. no financial incentive). In some developing nations, up to half of the population has paid bribes during the past 12 months. In recent years, efforts have been made by the international community to encourage countries to dissociate and incriminate as separate offences, active and passive bribery. Active bribery can be defined for instance as the promising, offering or giving by any person, directly or indirectly, of any undue advantage [to any public official], for himself or herself or for anyone else, for him or Page 79 of 115

her to act or refrain from acting in the exercise of his or her functions. (article 2 of the Criminal Law Convention on Corruption (ETS 173) of the Council of Europe). Passive bribery can be defined as the request or receipt [by any public official], directly or indirectly, of any undue advantage, for himself or herself or for anyone else, or the acceptance of an offer or a promise of such an advantage, to act or refrain from acting in the exercise of his or her functions (article 3 of the Criminal Law Convention on Corruption (ETS 173)). The reason for this dissociation is to make the early steps (offering, promising, requesting an advantage) of a corrupt deal already an offence and, thus, to give a clear signal (from a criminal policy point of view) that bribery is not acceptable. Furthermore, such a dissociation makes the prosecution of bribery offences easier since it can be very difficult to prove that two parties (the bribe-giver and the bribe-taker) have formally agreed upon a corrupt deal. In addition, there is often no such formal deal but only a mutual understanding, for instance when it is common knowledge in a municipality that to obtain a building permit one has to pay a "fee" to the decision maker to obtain a favorable decision. A working definition of corruption is also provided as follows in article 3 of the Civil Law Convention on Corruption (ETS 174): For the purpose of this Convention, "corruption" means requesting, offering, giving or accepting, directly or indirectly, a bribe or any other undue advantage or prospect thereof, which distorts the proper performance of any duty or behavior required of the recipient of the bribe, the undue advantage or the prospect thereof.

Trading in Influence Trading in influence, or influence peddling, refers a person selling his/her influence over the decision making process to benefit a third party (person or institution). The difference with bribery is that this is a tri-lateral relation. From a legal point of view, the role of the third party (who is the target of the influence) does not really matter although he/she can be an accessory in some instances. It can be difficult to make a distinction between this form of corruption and some forms of extreme and loosely regulated lobbying where for instance law- or decisionmakers can freely "sell" their vote, decision power or influence to those lobbyists who offer the highest compensation, including where for instance the latter act on behalf of powerful clients such as industrial groups who want to avoid the passing of specific environmental, social, or other regulations perceived as too stringent, etc. Where lobbying is (sufficiently) regulated, it becomes possible to provide for a distinctive criteria and to consider that trading in influence involves the use of "improper influence", as in article 12 of the Criminal Law Convention on Corruption (ETS 173) of the Council of Europe.

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Patronage Patronage refers to favoring supporters, for example with government employment. This may be legitimate, as when a newly elected government changes the top officials in the administration in order to effectively implement its policy. It can be seen as corruption if this means that incompetent persons, as a payment for supporting the regime, are selected before more able ones. In nondemocracies many government officials are often selected for loyalty rather than ability. They may be almost exclusively selected from a particular group (for example, Sunni Arabs in Saddam Hussein's Iraq, the nomenklatura in the Soviet Union, or the Junkers in Imperial Germany) that support the regime in return for such favors. A similar problem can also be seen in Eastern Europe, for example in Romania, where the government is often accused of patronage (when a new government comes to power it rapidly changes most of the officials in the public sector).

Nepotism and Cronyism Favoring relatives (nepotism) or personal friends (cronyism) of an official is a form of illegitimate private gain. This may be combined with bribery, for example demanding that a business should employ a relative of an official controlling regulations affecting the business. The most extreme example is when the entire state is inherited, as in North Korea or Syria. A lesser form might be in the Southern United States with Good ol' boys, where women and minorities are excluded. A milder form of cronyism is an "old boy network", in which appointees to official positions are selected only from a closed and exclusive social network â&#x20AC;&#x201C; such as the alumni of particular universities â&#x20AC;&#x201C; instead of appointing the most competent candidate. Seeking to harm enemies becomes corruption when official powers are illegitimately used as means to this end. For example, trumped-up charges are often brought up against journalists or writers who bring up politically sensitive issues, such as a politician's acceptance of bribes.

Electoral Fraud Electoral fraud is illegal interference with the process of an election. Acts of fraud affect vote counts to bring about an election result, whether by increasing the vote share of the favored candidate, depressing the vote share of the rival candidates, or both. Also called voter fraud, the mechanisms involved include illegal voter registration, intimidation at polls, and improper vote counting.

Embezzlement Embezzlement is theft of entrusted funds. It is political when it involves public money taken by a public official for use by anyone not specified by the public. A common type of embezzlement is that of personal use of entrusted government resources; for example, when an official assigns public employees to renovate his own house.

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Kickbacks A kickback is an official's share of misappropriated funds allocated from his or her organization to an organization involved in corrupt bidding. For example, suppose that a politician is in charge of choosing how to spend some public funds. He can give a contract to a company that is not the best bidder, or allocate more than they deserve. In this case, the company benefits, and in exchange for betraying the public, the official receives a kickback payment, which is a portion of the sum the company received. This sum itself may be all or a portion of the difference between the actual (inflated) payment to the company and the (lower) market-based price that would have been paid had the bidding been competitive. Another example of a kickback would be if a judge receives a portion of the profits that a business makes in exchange for his judicial decisions. Kickbacks are not limited to government officials; any situation in which people are entrusted to spend funds that do not belong to them are susceptible to this kind of corruption.

Unholy Alliance An unholy alliance is a coalition among seemingly antagonistic groups for ad hoc or hidden gain, generally some influential non-governmental group forming ties with political parties, supplying funding in exchange for the favorable treatment. Like patronage, unholy alliances are not necessarily illegal, but unlike patronage, by its deceptive nature and often great financial resources, an unholy alliance can be much more dangerous to the public interest. An early use of the term was by former US President Theodore "Teddy" Roosevelt: "To destroy this invisible Government, to dissolve the unholy alliance between corrupt business and corrupt politics is the first task of the statesmanship of the day." â&#x20AC;&#x201C; 1912 Progressive Party Platform, attributed to Roosevelt and quoted again in his autobiography, where he connects trusts and monopolies (sugar interests, Standard Oil, etc.) to Woodrow Wilson, Howard Taft, and consequently both major political parties.

Involvement in organized crime An illustrative example of official involvement in organized crime can be found from 1920s and 1930s Shanghai, where Huang Jinrong was a police chief in the French concession, while simultaneously being a gang boss and co-operating with Du Yuesheng, the local gang ringleader. The relationship kept the flow of profits from the gang's gambling dens, prostitution, and protection rackets undisturbed. The United States accused Manuel Noriega's government in Panama of being a "narcokleptocracy", a corrupt government profiting on illegal drug trade. Later the U.S. invaded Panama and captured Noriega.

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Conditions Favorable for Corruption It is argued that the following conditions are favorable for corruption: 

Information deficits o

o o o o



Lacking freedom of information legislation. For example: The Indian Right to Information Act 2005 is perceived to have "already engendered mass movements in the country that is bringing the lethargic, often corrupt bureaucracy to its knees and changing power equations completely." Lack of investigative reporting in the local media. Contempt for or negligence of exercising freedom of speech and freedom of the press. Weak accounting practices, including lack of timely financial management. Lack of measurement of corruption. For example, using regular surveys of households and businesses in order to quantify the degree of perception of corruption in different parts of a nation or in different government institutions may increase awareness of corruption and create pressure to combat it. This will also enable an evaluation of the officials who are fighting corruption and the methods used. Tax havens which tax their own citizens and companies but not those from other nations and refuse to disclose information necessary for foreign taxation. This enables large-scale political corruption in the foreign nations.

Lacking control of the government. o o o o o o o o

Lacking civic society and non-governmental organizations which monitor the government. An individual voter may have a rational ignorance regarding politics, especially in nationwide elections, since each vote has little weight. Weak civil service, and slow pace of reform. Weak rule of law. Weak legal profession. Weak judicial independence. Lacking protection of whistleblowers.  Government Accountability Project Lack of benchmarking, that is continual detailed evaluation of procedures and comparison to others who do similar things, in the same government or others, in particular comparison to those who do the best work. The Peruvian organization Ciudadanos al Dia has started to measure and compare transparency, costs, and efficiency in different government departments in Peru. It annually awards the best practices which has received widespread media attention. This has created competition among government agencies in order to improve. Individual officials routinely handle cash, instead of handling payments by giro or on a separate cash desk – illegitimate withdrawals from supervised bank accounts are much more difficult to conceal. Page 83 of 115

o o o o

o o

o o ď&#x201A;ˇ

Public funds are centralized rather than distributed. For example, if $1,000 is embezzled from a local agency that has $2,000 funds, it is easier to notice than from a national agency with $2,000,000 funds. See the principle of subsidiarity. Large, unsupervised public investments. Pay disproportionately lower than that of the average citizen. Government licenses needed to conduct business, e.g., import licenses, encourage bribing and kickbacks. Long-time work in the same position may create relationships inside and outside the government which encourage and help conceal corruption and favoritism. Rotating government officials to different positions and geographic areas may help prevent this; for instance certain high rank officials in French government services (e.g. treasurer-paymasters general) must rotate every few years. Costly political campaigns, with expenses exceeding normal sources of political funding, especially when funded with taxpayer money. A single group or family controlling most of the key government offices. Lack of laws forbidding and limiting number of members of the same family to be in office . Less interaction with officials reduces the opportunities for corruption. For example, using the Internet for sending in required information, like applications and tax forms, and then processing this with automated computer systems. This may also speed up the processing and reduce unintentional human errors. See eGovernment. A windfall from exporting abundant natural resources may encourage corruption. War and other forms of conflict correlate with a breakdown of public security.

Social conditions o o o o o o

Self-interested closed cliques and "old boy networks". Family-, and clan-centered social structure, with a tradition of nepotism/favouritism being acceptable. A gift economy, such as the Soviet blat system, emerges in a Communist centrally planned economy. Lacking literacy and education among the population. Frequent discrimination and bullying among the population. Tribal solidarity, giving benefits to certain ethnic groups. In India for example, the political system, it has become common that the leadership of national and regional parties are passed from generation to generation. creating a system in which a family holds the center of power. Some examples are most of the Dravidian parties of south India and also the Congress party, which is one of the two major political parties in India. Lack of strong laws which forbid members of the same family to contest elections and be in office as in India where local elections are often contested between members of the same powerful family by standing in opposite parties so that whoever is elected that particular family is at tremendous benefit.

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Media Thomas Jefferson observed a tendency for "The functionaries of every government ... to command at will the liberty and property of their constituents. There is no safe deposit [for liberty and property] ... without information. Where the press is free, and every man able to read, all is safe." Recent research supports Jefferson's claim. Brunetti and Weder found "evidence of a significant relationship between more press freedom and less corruption in a large cross-section of countries." They also presented "evidence which suggests that the direction of causation runs from higher press freedom to lower corruption." AdserĂ , Boix, and Payne found that increases in newspaper readership led to increased political accountability and lower corruption in data from roughly 100 countries and from different states in the US. Snyder and StrĂśmberg found "that a poor fit between newspaper markets and political districts reduces press coverage of politics. ... Congressmen who are less covered by the local press work less for their constituencies: they are less likely to stand witness before congressional hearings ... . Federal spending is lower in areas where there is less press coverage of the local members of congress." Schulhofer-Wohl and Garrido found that the year after the Cincinnati Post closed in 2007, "fewer candidates ran for municipal office in the Kentucky suburbs most reliant on the Post, incumbents became more likely to win reelection, and voter turnout and campaign spending fell. An analysis of the evolution of mass media in the US and Europe since World War II noted mixed results from the growth of the Internet: "The digital revolution has been good for freedom of expression [and] information [but] has had mixed effects on freedom of the press": It has disrupted traditional sources of funding, and new forms of Internet journalism have replaced only a tiny fraction of what's been lost. Page 85 of 115

Size of Public Sector Extensive and diverse public spending is, in itself, inherently at risk of cronyism, kickbacks, and embezzlement. Complicated regulations and arbitrary, unsupervised official conduct exacerbate the problem. This is one argument for privatization and deregulation. Opponents of privatization see the argument as ideological. The argument that corruption necessarily follows from the opportunity is weakened by the existence of countries with low to non-existent corruption but large public sectors, like the Nordic countries. However, these countries score high on the Ease of Doing Business Index, due to good and often simple regulations, and have rule of law firmly established. Therefore, due to their lack of corruption in the first place, they can run large public sectors without inducing political corruption. Recent evidence that takes both the size of expenditures and regulatory complexity into account has found that high-income democracies with more expansive state sectors do indeed have higher levels of corruption. Like other governmental economic activities, also privatization, such as in the sale of government-owned property, is particularly at the risk of cronyism. Privatizations in Russia, Latin America, and East Germany were accompanied by large-scale corruption during the sale of the state owned companies. Those with political connections unfairly gained large wealth, which has discredited privatization in these regions. While media have reported widely the grand corruption that accompanied the sales, studies have argued that in addition to increased operating efficiency, daily petty corruption is, or would be, larger without privatization, and that corruption is more prevalent in non-privatized sectors. Furthermore, there is evidence to suggest that extralegal and unofficial activities are more prevalent in countries that privatized less. There is the counterpoint, however, that industries with an oligarchy of companies can be quite corrupt, with collusive price-fixing, pressuring dependent businesses, etc., and only by having a portion of the market owned by someone other than that oligarchy, i.e. public sector, can keep them in line. If the public sector company is making money and selling their product for half of the price of the private sector companies, the private sector companies won't be able to simultaneously gouge to that degree and keep their customers: the competition keeps them in line. Private sector corruption can increase the poverty and helplessness of the population, so it can affect government corruption, in the long-term. In the European Union, the principle of subsidiarity is applied: a government service should be provided by the lowest, most local authority that can competently provide it. An effect is that distribution of funds into multiple instances discourages embezzlement, because even small sums missing will be noticed. In contrast, in a centralized authority, even minute proportions of public funds can be large sums of money.

Governmental Corruption If the highest echelons of the governments also take advantage from corruption or embezzlement from the state's treasury, it is sometimes referred with the neologism kleptocracy. Members of the government can take advantage of the natural resources (e.g., diamonds and oil in a few prominent cases) or state-owned productive industries. A number of corrupt governments have enriched themselves via foreign aid, which is often spent on showy buildings and armaments. Page 86 of 115

A corrupt dictatorship typically results in many years of general hardship and suffering for the vast majority of citizens as civil society and the rule of law disintegrate. In addition, corrupt dictators routinely ignore economic and social problems in their quest to amass ever more wealth and power. The classic case of a corrupt, exploitive dictator often given is the regime of Marshal Mobutu Sese Seko, who ruled the Democratic Republic of the Congo (which he renamed Zaire) from 1965 to 1997. It is said that usage of the term kleptocracy gained popularity largely in response to a need to accurately describe Mobutu's regime. Another classic case is Nigeria, especially under the rule of General Sani Abacha who was de facto president of Nigeria from 1993 until his death in 1998. He is reputed to have stolen some US$3–4 billion. He and his relatives are often mentioned in Nigerian 419 letter scams claiming to offer vast fortunes for "help" in laundering his stolen "fortunes", which in reality turn out not to exist. More than $400 billion was stolen from the treasury by Nigeria's leaders between 1960 and 1999. More recently, articles in various financial periodicals, most notably Forbes magazine, have pointed to Fidel Castro, General Secretary of the Republic of Cuba since 1959, of likely being the beneficiary of up to $900 million, based on "his control" of state-owned companies. Opponents of his regime claim that he has used money amassed through weapons sales, narcotics, international loans, and confiscation of private property to enrich himself and his political cronies who hold his dictatorship together, and that the $900 million published by Forbes is merely a portion of his assets, although that needs to be proven.

Opposition and Measurement Mobile telecommunications and radio broadcasting help to fight corruption, especially in developing regions like Africa, where other forms of communications are limited. In India, the anti-corruption bureau fights against corruption, and a new ombudsman bill called Jan Lokpal Bill is being prepared. In the 1990s, initiatives were taken at an international level (in particular by the European Community, the Council of Europe, the OECD) to put a ban on corruption: in 1996, the Committee of Ministers of the Council of Europe, for instance, adopted a comprehensive Program of Action against Corruption and, subsequently, issued a series of anti-corruption standard-setting instruments:      

the Criminal Law Convention on Corruption (ETS 173); the Civil Law Convention on Corruption (ETS 174); the Additional Protocol to the Criminal Law Convention on Corruption (ETS 191); the Twenty Guiding Principles for the Fight against Corruption (Resolution (97) 24); the Recommendation on Codes of Conduct for Public Officials (Recommendation No. R (2000) 10); the Recommendation on Common Rules against Corruption in the Funding of Political Parties and Electoral Campaigns (Rec(2003)4)

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The purpose of these instruments was to address the various forms of corruption (involving the public sector, the private sector, the financing of political activities, etc.) whether they had a strictly domestic or also a transnational dimension. To monitor the implementation at national level of the requirements and principles provided in those texts, a monitoring mechanism â&#x20AC;&#x201C; the Group of States Against Corruption (also known as GRECO) (French: Groupe d'Etats contre la corruption) was created. Further conventions were adopted at the regional level under the aegis of the Organization of American States (OAS or OEA), the African Union, and in 2003, at the universal level under that of the United Nations Convention against Corruption.

The Global Integrity Index Measuring corruption statistically is difficult if not impossible due to the illicit nature of the transaction and imprecise definitions of corruption. While "corruption" indices first appeared in 1995 with the Corruption Perceptions Index CPI, all of these metrics address different proxies for corruption, such as public perceptions of the extent of the problem. Transparency International, an anti-corruption NGO, pioneered this field with the CPI, first released in 1995. This work is often credited with breaking a taboo and forcing the issue of corruption into high level development policy discourse. Transparency International currently publishes three measures, updated annually: a CPI (based on aggregating third-party polling of public perceptions of how corrupt different countries are); a Global Corruption Barometer (based on a survey of general public attitudes toward and experience of corruption); and a Bribe Payers Index, looking at the willingness of foreign firms to pay bribes. The Corruption Perceptions Index is the best known of these metrics, though it has drawn much criticism and may be declining in influence. In 2013 Transparency International published a report on the "Government Defence Anti-corruption Index". This index evaluates the risk of corruption in countries' military sector. The World Bank collects a range of data on corruption, including survey responses from over 100,000 firms worldwide and a set of indicators of governance and institutional quality. Moreover, one of the six dimensions of governance measured by the Worldwide Governance Indicators is Control of Corruption, which is defined as "the extent to which power is exercised for private gain, including both petty and grand forms of corruption, as well as 'capture' of the state by elites and private interests." While the definition itself is fairly precise, the data aggregated into the Worldwide Governance Indicators is based on any available polling: questions range from "is corruption a serious problem?" to measures of public access to information, and not consistent across countries. Despite these weaknesses, the global coverage of these datasets has led to their widespread adoption, most notably by the Millennium Challenge Corporation. A number of parties have collected survey data, from the public and from experts, to try and gauge the level of corruption and bribery, as well as its impact on political and economic outcomes. A second wave of corruption metrics has been created by Global Integrity, the International Budget Partnership, and many lesser known local groups. These metrics include the Page 88 of 115

Global Integrity Index, first published in 2004. These second wave projects aim to create policy change by identifying resources more effectively and creating checklists toward incremental reform. Global Integrity and the International Budget Partnership each dispense with public surveys and instead uses in-country experts to evaluate "the opposite of corruption" – which Global Integrity defines as the public policies that prevent, discourage, or expose corruption. These approaches compliment the first wave, awareness-raising tools by giving governments facing public outcry a checklist which measures concrete steps toward improved governance. Typical second wave corruption metrics do not offer the worldwide coverage found in first wave projects, and instead focus on localizing information gathered to specific problems and creating deep, "unpackable" content that matches quantitative and qualitative data. Alternative approaches, such as the British aid agency's Drivers of Change research, skips numbers and promotes understanding corruption via political economy analysis of who controls power in a given society.

Institutions Dealing with Political Corruption 



  



Global Witness, an international NGO established in 1993 that works to break the links between natural resource exploitation, conflict, poverty, corruption, and human rights abuses worldwide Group of States Against Corruption, a body established under the Council of Europe to monitor the implementation of instruments adopted by member states to combat political corruption Independent Commission Against Corruption (disambiguation) International Anti-Corruption Academy Transparency International, a non-governmental organization that monitors and publicizes corporate and political corruption in international development o Corruption Perceptions Index, published yearly by Transparency International TrustLaw, a service of the Thomson Reuters Foundation is a global hub for free legal assistance and news and information on anti-corruption

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Conflicts of Interest A Conflict of Interest is a situation in which a person or organization is involved in multiple interests (financial, emotional, or otherwise), one of which could possibly corrupt the motivation of the individual or organization. The presence of a the a and

conflict of interest is independent of occurrence of impropriety. Therefore, conflict of interest can be discovered voluntarily defused before any corruption occurs. A widely used definition is: "A conflict of interest is a set of circumstances that creates a risk that professional judgement or actions regarding a primary interest will be unduly influenced by a secondary interest." Primary interest refers to the principal goals of the profession or activity, such as the protection of clients, the health of patients, the integrity of research, and the duties of public office. Secondary interest includes not only financial gain but also such motives as the desire for professional advancement and the wish to do favours for family and friends, but conflict of interest rules usually focus on financial relationships because they are relatively more objective, fungible, and quantifiable. The secondary interests are not treated as wrong in themselves, but become objectionable when they are believed to have greater weight than the primary interests. The conflict in a conflict of interest exists whether or not a particular individual is actually influenced by the secondary interest. It exists if the circumstances are reasonably believed (on the basis of past experience and objective evidence) to create a risk that decisions may be unduly influenced by secondary interests. The following are the most common forms of conflicts of interests: 

 



Self-dealing, in which an official who controls an organization causes it to enter into a transaction with the official, or with another organization that benefits the official only. The official is on both sides of the "deal." Outside employment, in which the interests of one job conflict with another. Nepotism, in which a spouse, child, or other close relative is employed (or applies for employment) by an individual, or where goods or services are purchased from a relative or from a firm controlled by a relative. To avoid nepotism in hiring, many employment applications ask if the applicant is related to a current employee of the company. This allows recusal if the employed relative has a role in the hiring process. If this is the case, the relative could then recuse from any hiring decisions. Gifts from friends who also do business with the person receiving the gifts or from individuals or corporations who do business with the organization in which the gift recipient is employed. Such gifts may include non-tangible things of value such as transportation and lodging. Page 91 of 115

ď&#x201A;ˇ

Pump and dump, in which a stock broker who owns a security artificially inflates the price by "upgrading" it or spreading rumors, sells the security and adds short position, then "downgrades" the security or spreads negative rumors to push the price down.

Other improper acts that are sometimes classified as conflicts of interests are probably better classified elsewhere. Accepting bribes can be classified as corruption. Use of government or corporate property or assets for personal use is fraud. Nor should unauthorized distribution of confidential information, in itself, be considered a conflict of interest. For these improper acts, there is no inherent conflict of roles (see above). COI is sometimes termed competition of interest rather than "conflict", emphasizing a connotation of natural competition between valid interests rather than violent conflict with its connotation of victimhood and unfair aggression. Nevertheless, denotatively, there is too much overlap between the terms to make any objective differentiation.

Inherent Problems Self-Policing Self-policing of any group is also a conflict of interest. If any organization, such as a corporation or government bureaucracy, is asked to eliminate unethical behavior within their own group, it may be in their interest in the short run to eliminate the appearance of unethical behavior, rather than the behavior itself, by keeping any ethical breaches hidden, instead of exposing and correcting them. An exception occurs when the ethical breach is already known by the public. In that case, it could be in the group's interest to end the ethical problem to which the public has knowledge, but keep remaining breaches hidden.

Government Officials Regulating conflict of interest in government is one of the aims of political ethics. Public officials are expected to put service to the public and their constituents ahead of their personal interests. Conflict of interest rules are intended to prevent officials from making decisions in circumstances that could reasonably be perceived as violating this duty of office. Rules in the executive branch tend to be stricter and easier to enforce than in the legislative branch. Two problems make legislative ethics of conflicts difficult and distinctive. First, as James Madison wrote, legislators should share a "communion of interests" with their constituents. Legislators cannot adequately represent the interests of constituents without also representing some of their own. As Senator Robert S. Kerr once said, "I represent the farmers of Oklahoma, although I have large farm interests. I represent the oil business in Oklahoma...and I am in the oil business...They don't want to send a man here who has no community of interest with them, because he wouldn't be worth a nickel to them." The problem is to distinguish special interests from the general interests of all constituents. Second, the "political interests" of legislatures include campaign contributions which they need to get elected, and which are generally not illegal and not the same as a bribe. But under many circumstances they can have the same effect. The problem here is how to keep the secondary interest in raising campaign funds from overwhelming what should be their primary interestâ&#x20AC;&#x201D;fulfilling the duties of office. Page 92 of 115

Politics in the United States is dominated in many ways by political campaign contributions Candidates are often not considered "credible" unless they have a campaign budget far beyond what could reasonably be raised from citizens of ordinary means. The impact of this money can be found in many places, most notably in studies of how campaign contributions affect legislative behavior. For example, the price of sugar in the United States has been roughly double the international price for over half a century. In the 1980s, this added $3 billion to the annual budget of U.S. consumers, according to Stern, who provided the following summary of one part of how this happens: Contributions from the sugar lobby, 1983–1986 > $5,000 $2,500–5,000 $1,000–2,500 $1–1,000 $0

Percent voting in 1985 against gradually reducing sugar subsidies 100% 97% 68% 45% 20%

This $3 billion translates into $41 per household per year. This is in essence a tax collected by a nongovernmental agency: It is a cost imposed on consumers by governmental decisions, but never considered in any of the standard data on tax collections. Stern notes that sugar interests contributed $2.6 million to political campaigns, representing well over $1,000 return for each $1 contributed to political campaigns. This, however, does not include the cost of lobbying. Lessig cites six different studies that consider the cost of lobbying with campaign contributions on a variety of issues considered in Washington, D.C. These studies produced estimates of the anticipated return on each $1 invested in lobbying and political campaigns that ranged from $6 to $220. Lessig notes that clients who pay tens of millions of dollars to lobbyists typically receive billions. Lessig insists that this does not mean that any legislator has sold his or her vote. One of several possible explanations Lessig gives for this phenomenon is that the money helped elect candidates more supportive of the issues pushed by the big money spent on lobbying and political campaigns. He notes that if any money perverts democracy, it is the large contributions beyond the budgets of citizens of ordinary means; small contributions from common citizens have long been considered supporting of democracy. When such large sums become virtually essential to a politician's future, it generates a substantive conflict of interest contributing to a fairly well documented distortion on the nation's priorities and policies. Beyond this, governmental officials, whether elected or not, often leave public service to work for companies affected by legislation they helped enact or companies they used to regulate or companies affected by legislation they helped enact. This practice is called the "revolving door". Former legislators and regulators are accused of (a) using inside information for their new employers or (b) compromising laws and regulations in hopes of securing lucrative employment Page 93 of 115

in the private sector. This possibility creates a conflict of interest for all public officials whose future may depend on the Revolving door.

Mitigating Conflicts of Interest Disclosure Commonly, politicians and high-ranking government officials are required to disclose financial informationâ&#x20AC;&#x201D;assets such as stock, debts such as loans, and/or corporate positions held, typically annually. To protect privacy (to some extent), financial figures are often disclosed in ranges such as "$100,000 to $500,000" and "over $2,000,000". Certain professionals are required either by rules related to their professional organization, or by statute, to disclose any actual or potential conflicts of interest. In some instances, the failure to provide full disclosure is a crime. However, there is limited evidence regarding the effect of conflict of interest disclosure despite its widespread acceptance. A 2012 study published in the Journal of the American Medical Association showed that routine disclosure of conflicts of interest by American medical school educators to pre-clinical medical students were associated with an increased desire among students for limitations in some industry relationships. However, there were no changes in the Page 94 of 115

perceptions of students about the value of disclosure, the influence of industry relationships on educational content, or the instruction by faculty with relevant conflicts of interest. And, an increasing line of research suggests that disclosure can have "perverse effects" or, at least, is not the panacea regulators often take it to be.

Recusal for Conflict Those with a conflict of interest are expected to recuse themselves from (i.e., abstain from decisions where such a conflict exists). The imperative for recusal varies depending upon the circumstance and profession, either as common sense ethics, codified ethics, or by statute. For example, if the governing board of a government agency is considering hiring a consulting firm for some task, and one firm being considered has, as a partner, a close relative of one of the board's members, then that board member should not vote on which firm is to be selected. In fact, to minimize any conflict, the board member should not participate in any way in the decision, including discussions. Judges are supposed to recuse themselves from cases when personal conflicts of interest may arise. For example, if a judge has participated in a case previously in some other judicial role he/she is not allowed to try that case. Recusal is also expected when one of the lawyers in a case might be a close personal friend, or when the outcome of the case might affect the judge directly, such as whether a car maker is obliged to recall a model that a judge drives. This is required by law under Continental civil law systems and by the Rome Statute, organic law of the International Criminal Court.

Third-Party Evaluations Consider a situation where the owner of a majority of a public companies decides to buy out the minority shareholders and take the corporation private. What is a fair price? Obviously it is improper (and, typically, illegal) for the majority owner to simply state a price and then have the (majority-controlled) board of directors approve that price. What is typically done is to hire an independent firm (a third party), well-qualified to evaluate such matters, to calculate a "fair price", which is then voted on by the minority shareholders. Third-party evaluations may also be used as proof that transactions were, in fact, fair ("arm'slength"). For example, a corporation that leases an office building that is owned by the CEO might get an independent evaluation showing what the market rate is for such leases in the locale, to address the conflict of interest that exists between the fiduciary duty of the CEO (to the stockholders, by getting the lowest rent possible) and the personal interest of that CEO (to maximize the income that the CEO gets from owning that office building by getting the highest rent possible).

Conclusion Generally, conflicts of interests should be eliminated. Often, however, the specifics can be controversial. Should therapists, such as psychiatrists, be allowed to have extra-professional Page 95 of 115

relations with patients, or ex-patients? Should a faculty member be allowed to have an extraprofessional relationship with a student, and should that depend on whether the student is in a class of, or being advised by, the faculty member? Codes of ethics help to minimize problems with conflicts of interests because they can spell out the extent to which such conflicts should be avoided, and what the parties should do where such conflicts are permitted by a code of ethics (disclosure, recusal, etc.). Thus, professionals cannot claim that they were unaware that their improper behavior was unethical. As importantly, the threat of disciplinary action (for example, a lawyer being disbarred) helps to minimize unacceptable conflicts or improper acts when a conflict is unavoidable. Since codes of ethics cannot cover all situations, some governments have established an office of the ethics commissioner, who can be appointed by the legislature and report to the legislature.

Judicial Disqualification Judicial disqualification, also referred to as recusal, refers to the act of abstaining from participation in an official action such as a legal proceeding due to a conflict of interest of the presiding court official or administrative officer. Applicable statutes or canons of ethics may provide standards for recusal in a given proceeding or matter. Providing that the judge or presiding officer must be free from disabling conflicts of interest makes the fairness of the proceedings less likely to be questioned.

Recusal Generally In the United States, the term "recusal" is used most often with respect to court proceedings. Two sections of Title 28 of the United States Code (the Judicial Code) provide standards for judicial disqualification or recusal. Section 455, captioned "Disqualification of justice, judge, or magistrate judge," provides that a federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The section also provides that a judge is disqualified "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding"; when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinion concerning its outcome; or when the judge or a member of his or her immediate family has a financial interest in the outcome of the proceeding. 28 U.S.C. Section 144, captioned "Bias or prejudice of judge," provides that under circumstances, when a party to a case in a United States District Court files a "timely and sufficient Motion that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of an adverse party," the case shall be transferred to another judge. The General Rule is that, to warrant recusal, a judge's expression of an opinion about the merits of a case, or his familiarity with the facts or the parties, must have originated in a source outside the case itself. This is referred to in the United States as the "extra-judicial source rule" and was Page 96 of 115

recognized as a general presumption, although not an invariable one, in the 1994 U.S. Supreme Court decision in Liteky v. United States. At times justices or judges will recuse themselves sua sponte (on their own motion), recognizing that facts leading to their disqualification are present. However, where such facts exist, a party to the case may suggest recusal. Generally, each judge is the arbiter of a motion for the judge's recusal, which is addressed to the judge's conscience and discretion. However, where lower courts are concerned, an erroneous refusal to recuse in a clear case can be reviewed on appeal or, under extreme circumstances, by a petition for a writ of prohibition. In certain special situations, circumstances, that would otherwise call for recusal of a judge or group of judges, may be disregarded, when otherwise no judge would be available to hear the case. For example, if a case concerns a salary increase payable to a judge, that judge would ordinarily be disqualified from hearing the case. However, if the pay increase is applicable to all of the judges in the court system, the judge will keep the case, because the grounds for recusal would be equally applicable to any other judge. The principle that a judge will not be disqualified when the effect would be that no judge could hear the case is sometimes referred to as the "rule of necessity".

Supreme Court Cases In the Supreme Court of the United States, the Justices typically recuse themselves from participating in cases in which they have financial interests. For example, Justice Sandra Day O'Connor generally did not participate in cases involving telecommunications firms because she owned stock in these firms, and Justice Stephen Breyer has disqualified himself in some cases involving insurance companies because of his participation in a Lloyd's of London syndicate. Justices also have declined to participate in cases in which close relatives, such as their children, are lawyers for one of the parties. On occasion, recusal occurs under more unusual circumstances; for example, in two cases, Chief Justice William H. Rehnquist stepped down from the bench when cases were argued by Arizona attorney James Brosnahan, who had testified against Rehnquist at his confirmation hearing in 1986. Whatever the reason for recusal, the United States Reports will record that the named justice "took no part in the consideration or decision of this case." Historically, standards for recusal in the Supreme Court and lower courts were less rigorous than they have become in more recent years. In the 1803 case of Marbury v. Madison, Chief Justice John Marshall participated in the decision and authored the opinion of the Court even though Marshall's actions as Secretary of State two years prior could be seen as the subject of the proceeding. On the other hand, Marshall did recuse himself in both the 1813 and 1816 hearings of Martin v. Hunter's Lessee, despite its equally significant constitutional implications, as he and his brother had contracted with Martin to buy the land in dispute. Moreover, during the 19th century, the U.S. federal court system was structured so that an appeal from a judge's decision was often heard by an appellate panel containing the same judge, who was expected to sit in impartial review of his own earlier ruling. This situation is no longer permissible, and 28 U.S.C. Sec. 47 provides that "No judge shall hear or determine an appeal from the decision of a case or issue tried by him." Page 97 of 115

One of notable dispute over recusal in U.S. Supreme Court history took place in 1946, when Justice Hugo Black participated in deciding the Jewell Ridge Coal case, although a former law partner of Black argued for the prevailing side. The losing party in the 5–4 decision sought reargument on the ground that Black should have been disqualified; Black declined to recuse himself and the decision stood, but Justice Robert H. Jackson wrote a short opinion suggesting that the decision that Black should sit in the case was Black's alone and the Court did not endorse it. The dispute aggravated infighting between Black and Jackson, and it has been suggested that this was one of the reasons that, when Chief Justice Harlan Fiske Stone died, President Harry S. Truman appointed Fred M. Vinson to succeed Stone rather than promote a sitting Associate Justice to Chief Justice. In 1973, then-Associate Justice Rehnquist wrote a lengthy in-chambers opinion declining to recuse himself in Laird v. Tatum, a case challenging the validity of certain arrests, even though Rehnquist had previously served as a White House lawyer and opined that the arrest program was valid. In 2004, Justice Antonin Scalia wrote an opinion declining to recuse himself in a case to which Vice President Dick Cheney was a party in his official capacity, despite the contention of several environmental groups that Scalia's participation created an appearance of impropriety because Scalia had recently participated in a widely publicized hunting trip with the Vice President. The same year, however, Scalia recused himself without explanation in Elk Grove Unified School District v. Newdow, a First Amendment case challenging inclusion of the words "under God" in the Pledge of Allegiance, after giving a public speech in which Scalia stated his view that Newdow's claims were meritless.

Other Federal Cases In 1974, Black federal Judge Leon Higginbotham issued his decision in Comm. of Pa. v. Local 542, Int'l Union of Operating Engineers, explaining why he as an African American judge with a history of active involvement in the civil rights struggle was not obligated to recuse himself from presiding over litigation concerning claims of racial discrimination. He held, in an opinion that was followed by later judges, including a series of Black judges who faced recusal requests, that if a judge could be forced to step aside from a case merely because of their membership in a group that was the subject of discrimination, minorities would constantly be removed from cases. Jewish federal Judge Paul Borman relied on the Higginbotham opinion in part in his 2014 decision not to recuse himself from the trial of Palestinian-American Rasmea Odeh. Similarly, in 1994, Jewish then-federal-Judge Michael Mukasey refused to recuse himself in a case concerning the 1993 World Trade Center bombing, warning that the demand for his recusal would ―disqualify not only an obscure district judge such as the author of this opinion, but also Justices Brandeis and Frankfurter … each having been both a Jew and a Zionist.‖

Administrative Agency and Other Matters Outside the judicial system, the concept of recusal is also applied in administrative agencies. When a member of a multi-member administrative body is recused, the remaining members typically determine the outcome. When the sole occupant of an official position is recused, the matter may be delegated to the official's deputy or to a temporarily designated official; for Page 98 of 115

example, when the Solicitor General of the United States is recused from a case, the Deputy Solicitor General will handle the matter in his or her place. Concepts analogous to recusal also exist in the legislative branch. The rules of the United States Senate and House of Representatives provide that a Member should not vote on a measure as to which he or she has a personal financial interest. In such cases, the Senator or Representative may record a vote of "present" rather than "yea" or "nay".

International Standards of Recusal Laws or court rules provide the recusal of judges. Although the details vary, the following are nearly universal grounds for recusal.       



The judge is related to a party, attorney, or spouse of either party (usually) within three degrees of kinship. The judge is a party. The judge is a material witness unless pleading purporting to make the Judge a party is false (determined by presiding judge, but see Substitution (law)). The judge has previously acted in the case in question as an attorney for a party, or participated in some other capacity. The judge prepared any legal instrument (such as a contract or will) whose validity or construction is at issue. Appellate judge previously handled case as a trial judge. The judge has personal or financial interest in the outcome. This particular ground varies by jurisdiction. Some require recusal if there is any interest at all in the outcome, while others only require recusal if there is interest beyond a certain value. The judge determines he or she cannot act impartially.

Consequences for Non-Recusal A judge who has grounds to recuse himself is expected to do so. If a judge does not know that grounds exist to recuse themselves (but does) the error is harmless. If a judge does not recuse themselves when they should have known to do so, they may be subject to sanctions, which vary by jurisdiction. Depending on the jurisdiction, if an appellate court finds a judgment to have been made when the judge in question should have been recused, it may set aside the judgment and return the case for retrial.

Waiver & Substitution The recusal rule may be avoided or ignored if all parties and the judge agree, although in practice this rarely occurs. If recusal is avoided in this manner, a full and complete record of the facts that qualify as grounds, above, must be made for the appellate court. If a judge fails to recuse themselves sua sponte and a party believes the judge has a bias the party may motion for substitution. In some jurisdictions litigants may have the right to substitute a judge, even if no bias is demonstrated. Page 99 of 115

International Case Law Standard for Recusal â&#x20AC;&#x201C; Landmark Case R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233) is a leading English case on the impartiality and recusal of judges. It is famous for its precedence in establishing the principle that the mere appearance of bias is sufficient to overturn a judicial decision. It also brought into common parlance the oft-quoted aphorism "Not only must Justice be done; it must also be seen to be done." In 1923 McCarthy, a motorcyclist, was involved in a road accident which resulted in his prosecution before a magistrates court for dangerous driving. Unknown to the defendant and his solicitor, the clerk to the justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of the accident that had given rise to the prosecution. The clerk retired with the justices, who returned to convict the defendant. On learning of the clerk's provenance, the defendant applied to have the conviction quashed. The justices swore affidavits stating that they had reached their decision to convict the defendant without consulting their clerk. The appeal was essentially one of judicial review and was heard at the King's Bench division by Lord Chief Justice Hewart. In a landmark and far-reaching judgement, Lord Hewart CJ said:

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It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. Speaking for myself, I accept the statements contained in the justices' affidavit, but they show very clearly that the deputy clerk was connected with the case in a capacity which made it right that he should scrupulously abstain from referring to the matter in any way, although he retired

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with the justices; in other words, his one position was such that he could not, if he had been required to do so, discharge the duties which his other position involved. His twofold position was a manifest contradiction. In those circumstances I am satisfied that this conviction must be quashed, unless it can be shown that the applicant or his solicitor was aware of the point that might be taken, refrained from taking it, and took his chance of an acquittal on the facts, and then, on a conviction being recorded, decided to take the point. On the facts I am satisfied that there has been no waiver of the irregularity, and, that being so, the rule must be made absolute and the conviction quashed.

The ruling is derived from the principle of natural justice and has been followed throughout the world in countries that use the English legal system. It has been applied in many diverse situations, including immigration cases, professional disciplinary cases, domestic tribunals such as members' clubs, and perhaps most famously in the Pinochet case, where the House of Lords overturned its own decision on the grounds of Lord Hoffman's conflict of interest.

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Judicial Activism Judicial Activism is judicial rulings suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial political issue, particularly in the United States. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers. Arthur Schlesinger Jr. introduced the term "Judicial Activism" in a January 1947 Fortune magazine article titled "The Supreme Court: 1947". The phrase has been controversial since its beginning. An article by Craig Green, "An Intellectual History of Judicial Activism," is critical of Schlesinger's use of the term; "Schlesinger's original introduction of judicial activism was doubly blurred: not only did he fail to explain what counts as activism, he also declined to say whether activism is good or bad." Even before this phrase was first used, the general concept already existed. For example, Thomas Jefferson referred to the "despotic behaviour" of Federalist federal judges, in particular, John Marshall. Black's Law Dictionary defines judicial activism as a "philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions." Political science professor Bradley Canon has posited six dimensions along which judge courts may be perceived as activist: majoritarianism, interpretive stability, interpretive fidelity, substance/democratic process, specificity of policy, and availability of an alternate policymaker. David Strauss has argued that judicial activism can be narrowly defined as one or more of three possible actions: overturning laws as unconstitutional, overturning judicial precedent, and ruling against a preferred interpretation of the constitution. Others have been less confident of the term's meaning, finding it instead to be little more than a rhetorical shorthand. Kermit Roosevelt III has argued that "in practice 'activist' turns out to be little more than a rhetorically charged shorthand for decisions the speaker disagrees with"; likewise, the solicitor general under George W. Bush, Theodore Olson, said in an interview on Fox News Sunday, in regards to a case for same-sex marriage he had successfully litigated, that "most people use the term 'judicial activism' to explain decisions that they don't like." Supreme Page 103 of 115

Court Justice Anthony Kennedy has said that, "An activist court is a court that makes a decision you don't like."

The Great Judicial Activism Debate Detractors of judicial activism charge that it usurps the power of the elected branches of government or appointed agencies, damaging the rule of law and democracy. Defenders of judicial activism say that in many cases it is a legitimate form of judicial review, and that the interpretation of the law must change with changing times. A third view is that so-called "objective" interpretation of the law does not exist. According to law professor Brian Z. Tamanaha, "Throughout the so-called formalist age, it turns out, many prominent judges and jurists acknowledged that there were gaps and uncertainties in the law and that judges must sometimes make choices." Some proponents of a stronger judiciary argue that the judiciary helps provide checks and balances and should grant itself an expanded role to counterbalance the effects of transient majoritarianism, i.e., there should be an increase in the powers of a branch of government which is not directly subject to the electorate, so that the majority cannot dominate or oppress any particular minority through its elective powers. Other scholars have proposed that judicial activism is most appropriate when it restrains the tendency of democratic majorities to act out of passion and prejudice rather than after reasoned deliberation. Moreover, they argue that the judiciary strikes down both elected and unelected official action, in some instances acts of legislative bodies reflecting the view the transient majority may have had at the moment of passage and not necessarily the view the same legislative body may have at the time the legislation is struck down. Also, the judges that are appointed are usually appointed by previously elected executive officials so that their philosophy should reflect that of those who nominated them, that an independent judiciary is a great asset to civil society since special interests are unable to dictate their version of constitutional interpretation with threat of stopping political donations.

Landmark Cases in Judicial Activism The following are [cases] cited as examples of judicial activism:

1. R v Sussex Justices, ex p McCarthy   

Brown v. Board of Education – 1954 Supreme Court ruling ordering the desegregation of public schools. Roe v. Wade – 1973 Supreme Court ruling decriminalizing abortion. Bush v. Gore – The United States Supreme Court case between the major-party candidates in the 2000 presidential election, George W. Bush and Al Gore. The judges voted 5-4 to halt the recount of ballots in Florida and, as a result, George Bush was elected President. Page 104 of 115



 

Citizens United v. Federal Election Commission – 2010 Supreme Court decision declaring Congressionally enacted limitations on corporate political spending and transparency as unconstitutional restrictions on free speech. Hollingsworth v. Perry – 2013 decision by federal judge Vaughn R. Walker overturning California's constitutional amendment to ban same-sex marriage. Contempt of Court and disqualification of Pakistani Prime Minister Yusuf Raza Gilani by the Supreme Court of Pakistan chief justice Iftikhar Muhammad Chaudhry.

2. R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet (No 2) R v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte (No 2) was an English legal case which involved the unprecedented setting aside of a House of Lords judgment based upon the possibility of bias. Lord Hoffmann's failure to declare links to Amnesty International meant that a previous House of Lords judgment on the immunity of former Chilean dictator General Augusto Pinochet had to be set aside.

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References 1. http://en.wikipedia.org/wiki/Judicial_reform 2. http://en.wikipedia.org/wiki/Judiciary 3. http://en.wikipedia.org/wiki/Supreme_court 4. http://en.wikipedia.org/wiki/Judicial_independence 5. http://en.wikipedia.org/wiki/Judiciary_of_Russia 6. http://en.wikipedia.org/wiki/Law_reform 7. http://en.wikipedia.org/wiki/Judicial_review 8. http://en.wikipedia.org/wiki/Judicial_review_in_the_United_States 9. http://en.wikipedia.org/wiki/Rule_of_law 10. http://en.wikipedia.org/wiki/Political_corruption 11. http://en.wikipedia.org/wiki/Judicial_disqualification 12. http://en.wikipedia.org/wiki/Judicial_activism 13. http://en.wikipedia.org/wiki/List_of_landmark_court_decisions_in_the_United_States 14. http://en.wikipedia.org/wiki/Conflict_of_interest 15. http://en.wikipedia.org/wiki/R_v_Sussex_Justices,_ex_p_McCarthy 16. http://en.wikipedia.org/wiki/R_v_Bow_Street_Metropolitan_Stipendiary_Magistrate,_ex _p_Pinochet_%28No_2%29 17. http://iosrjournals.org/iosr-jhss/papers/Vol19-issue2/Version-4/C019242025.pdf 18. http://www.texaslrev.com/wp-content/uploads/Stone-89-TLR-1423.pdf 19. http://regentuniversity.org/acad/schlaw/student_life/studentorgs/lawreview/docs/issues/v 14n1/Vol.%2014,%20No.%201,%205%20Jones.pdf

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Attachment A The Role of Judicial Activism

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IOSR Journal Of Humanities And Social Science (IOSR-JHSS) Volume 19, Issue 2, Ver. IV (Feb. 2014), PP 20-25 e-ISSN: 2279-0837, p-ISSN: 2279-0845. www.iosrjournals.org

“The Role of Judicial Activism in the Implementation and Promotion of Constitutional Laws and Influence of Judicial Overactivism” Vipin Kumar (NET, M.Phil.), Research Scholar, Shri Venkateshwara University, Rajabpur, Gajraula (UP) Address- near K.G.K (P G) College Dev Vihar Colony, Line Par, Moradabad, Mob- 945806777, 8194005705

Abstract: Judicial activism is today one of the most misused constitutional terms. India practices constitutionaldemocracy with emphasis on constitutionalism. This comes with it to high rates of political activities with misuse of political powers granted in the Constitution by the political actors. Naturally, the court is called upon to wear its active posture and interpret theConstitution as it affects the political class. However, each decision of the courts interpreting the constitution against the political class is met with cries of “judicial activism” from one side of the political spectrum or the other. The other cry seems to be that the courts are encroaching into the domain of the political class thereby violating the doctrine of political questions which is essentially a function of separation of powers. The paper sees these terms as being misused and makes an analytical exposition of the term and judicial intervention into political questions in India. It contends that courts should ensure the limits of governmental action under the principles of a constitutional democracy, even in the delicate field of internal affairs of governmental institutions. For this purpose, various constitutional provisions and judicial decisions are examined. Key Words: Judicial activism, constitutional democracy , separation of powers, constitutional provisions ,

Introduction:-

Today judicial activism has touched almost each and every aspect of life ranges from human rights issues to maintenance of public roads! Judicial activism means the power of the Supreme Court and the high court but not the sub-ordinate courts to declare the laws as unconstitutional and void. If it infringes or if the law is inconsistent with one or more provisions of the constitution. To the extent of such inconsistency while declaring a law as constitutional and void the courts do not suggest any alternative measures. The term judicial activism despites its popularity to amongst legal experts, judges, scholars and politicians has not until recently been given an appropriate definition of what the term should mean so that it will not be subject to abuse.1 The effect of this has been a misconception about what the term is all about.2 This therefore creates series of definitions about the concept. Although definitions are usually products of individual idiosyncrasies and it‟s often influenced by the individual perception or world view, a combination of various definitions gives a description of the concept. the Judicial Activism as innovative, dynamic and law making role of the Court with a forward looking attitude discarding reliance on old cases, and also mechanical, conservative and static views. It is the creative thought process through which the court displays vigour, enterprise, initiative pulsating with the urge of creating new and refined principles of law. It means when the Court plays a positive role the court is said to be exhibiting the „Judicial Activism‟. There are different opinions about the origin of doctrine of Judicial Activism. Some scholars like Justice M.N. Roy believe that it is born in 1804 when Chief Justice Marshall, the greatest judge of English-speaking world, decided Marbury V Madison. But P.P. Vijayan differs with saying that Marbury V Madison is a case of Judicial Review and not of a Judicial Activism. However he opines that the judicial activism has a hoary past in Dr. Bonham‟s case in which Justice Coke derived doctrine of natural justice in the year 1610. In this context Dr. Suresh Mane observed that “As a result English Courts by its interpretation role extended the necessary protection; but truly, the movement of judicial activism got momentum on the soil ofAmerica under the shadow of first ever written Constitution.” 1 The role of the judiciary in a modern legal system is immense social significance.... Law is in a constant process of flux and development, and though much of this development is due to the enactment of the legislature, the judges and the courts have an essential role to play in developing the law and adopting it to the needs of the Society.3 Paul Mahoney in offering his own definition of the concept submits that judicial activism exists where the judges modified the law from what was previously stated to be the existing law which often leads to substituting their own decisions from that of the elected representatives of the people.4 This definition would consider invalid actions or decisions of the judges given for the purpose of seeking the justice in a particular www.iosrjournals.org

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“The Role Of Judicial Activism In The Implementation And Promotion Of Constitutional Laws And case or to interpret the law insuch a way as to conform to social realities thereby not permitting the correction of mistakes in the previous jurisprudence of law.5 Famous Author SubhashKashyap says, “What has come to be called hyper activism of the judiciary draws its strength, Relevance and legitimacy from the inactivity, incompetence, disregard of law and constitution, criminal negligence, corruption, greed for power and money, utter indiscipline and lack of character and integrity among the leaders, ministers and administrators. As a result of this a vacuum was created in which the governmental machinery seemed to be totally helpless with the corruption in legislative and executive fields. The vacuum was filled in by the judiciary”. A contrary view has also been offered that the judicial activism becomes the most valuable instrument when the legislative machinery comes to a halt in a case.6 Thus, where legislative machinery could not apply to a given situation, judicial activism appears to be the most valuable instrument. In other words, judges should not be scared of adjudicating a particular case because the law has not been enacted by the legislature to cover the situation. This therefore justifies the application of judicial creativity in the matter. Judicial Activism in India: The significant feature of Indian Constitution is partial separation of powers. -The doctrine of separation of powers was propounded by the French Jurist, Montesquieu. It is partly adopted tit India since the executive powers are vested in the president, Legislative powers tit the Parliament and the judicial powers in the Supreme Court and subordinate courts. The role of separation of powers in India is simple. The three organs of the Government viz. the Executive, Legislature and the Judiciary are not independently independent but inter-dependently independent. (The executive encroaches upon judicial power, while appointing the judges of Supreme Court and High Courts. Similarly the Judiciary, by its review power examines the law passed by file legislature parliament and the legislature also, intervenes in respect of impeachment of the president). As stated earlier, the Judicial Activism tit India can he witnessed with reference to the review power of the Supreme Court and High Court under Art. 32 and 226 of the Constitution particularly in public interest litigation cases. The Supreme Court played crucial role in formulating several principles in public interest litigation cases. For instance, the principle of "absolute liability" was propounded in Oleum Gas Leak case. Public Trust Doctrine in Kamalnath Case (1998 I SCC .388) etc. Further, the Supreme Court, gave variety of guidelines in various cases of public interest litigation. eg: Ratlam Municipality Case, Oleum Gas Leak Case, Ganga Pollution Case etc. In India the concept originated after a public interest litigation was filed before the supreme court when the then Chief justice P N Bhagwati took an unknown case directly from the public who did not had any involvement in the case but it was just for the public welfare and also was related to public in large. Justice P N Bhagwati has said that “One basic and fundamental question that confronts every democracy, run by a rule of law is, what is the role or function of a judge. Is it the function of a judge merely to declare law as it exists-or to make law? And this question is very important, for on it depends the scope of judicial activism. The anglo-saxon tradition persists in the assertion that a judge does not make law; he merely interprets. Law is existing and eminent; the judge merely finds it. He merely reflects what the legislature has said. This is the photographic theory of the judicial function”. It is for the judge to give meaning to what the legislature has said and it is this process of interpretation which constitutes the most creative and thrilling function of a judge. In the initial years of 1950-67, the Supreme Court adopted the attitude of judicial restraint in which the court gave a strict and literal interpretation of the constitution.Judicial review in India was provided for expressly in the Constitution. Article 13, clause (1) says that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions containing the fundamental rights, shall, to the extent of such inconsistency, be void. Clause (2) of that article further says that the State shall not make any law that takes away or abridges any of the fundamental rights and any law made in contravention of the above mandate shall, to the extent of the contravention, be void. The Constitution also divides the legislative power between the Centre and the states and forbids either of them to encroach upon the power given to the other. Who is to decide whether a legislature or an executive has acted in excess of its powers or in contravention of any of the restrictions imposed by the Constitution on its power? Obviously, such function was assigned to the courts. The Constitution was criticized by some members of the Constituent Assembly for being a potential lawyers‟ paradise. Dr. B.R. Ambedkar defended the provisions of judicial review as being absolutely necessary and rejected the above criticism. According to him, the provisions for judicial review and particularly for the writ jurisdiction that gave quick relief against the abridgement of fundamental rights constituted the heart of the Constitution, the very soul of it. The nature and scope of judicial review was first examined by the Supreme Court in A.K. Gopalan case where it accepted the principle of judicial subordination to legislative wisdom. But on the whole it limited itself and exercised judicial restraint. The second phase unfolded with the Golaknath case which resulted in on open conflict between the judiciary and legislature. The parliament asserted its supremacy and the Supreme Court asserted its power of Judicial www.iosrjournals.org

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“The Role Of Judicial Activism In The Implementation And Promotion Of Constitutional Laws And Review, which resulted in a series of constitutional amendments in which the parliament tried to limit the power of Judicial review. In the Emergency of 1975-77, the judiciary was made subservient to the legislature and executive. In Golaknath case, the Supreme Court gave an unprecedented judgment, which was clearly a case of Judicial Activism. The reason of imposing emergency was the decision of Allahabad High Court setting aside the election of Prime Minister Indira Gandhi to the LokSabha. The 42nd constitutional Amendment Act was also passed which put new limitations on the judiciary. After the emergency the 44th constitutional Act was passed which restored the judiciary‟s position as it had existed before the emergency. In Minerva mills case the Supreme Court declared judicial review as part of the basic structure. Since 1980‟s we saw the emergence of Judicial Activism as a powerful tool in Indian Polity. Thus now we find that the Supreme Court is no longer exercising judicial restraint. But in fact, it has taken up Judicial Activism so much. A court giving new meaning to a provision so as to suit the changing social or economic conditions or expanding the horizons of the right of the individual is said to be an activist court. Thus has given birth to Judicial Activism. In the words of Justice J. S. Varma “The role of the Judiciary in interpreting existing laws according to the needs of the times and filling in the gaps appears to be the true meaning of Judicial Activism.7 Present scenario of Judicial activism or Judicial overactivism:Of late the Indian judiciary appears to have become overactive, and is often accused of judicial overreach. This accusation was usually leveled by politicians or others outside the judicial system, until in 2008 it was leveled by Justice A.K. Mathur and the writer (as Judges of the Supreme Court) in Divisional Manager, Aravalli Golf Course v. Chander Haas.The Indian Supreme Court surely came a long way since Anwar Ali Sarkar Vs. State of West BengalAIR 1952 SC 75 and A.K. Gopalan Vs. State of Madras where the judiciary refused to indulge in making judicial policy and instead exercised judicial restraint keeping in mind the Doctrine of Separation of Powers. However, the pendulum later swung to the opposite direction. Thus, in Maneka Gandhi vs. Union of India AIR 1978 SC 593 the 7 Judge Bench of the Indian Supreme Court, while overruling the 5 Judge Bench decision in A.K. Gopalan‟scase introduced the due process clause in the Indian Constitution by a judicial pronouncement. In S. P. Gupta Vs. Union of India ,AIR 1982 SC 149 it was held that:“He [the judge] has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of dynamic interpretation, invest it with a meaning which will harmonize the law with the prevailing concepts and values and make it an effective, instrument for delivery of justice.” Similarly, in the case of Supreme Court Advocates on Record Vs. Union of India,1993 4 SCC 44it was held that:“It belongs to the Judiciary to ascertain the meaning of the constitutional provisions and the laws enacted by the Legislature.” This was the advent of an over active judiciary which assumed upon itself the need to adjudicate even where it was not perceived to be warranted. Although Article 50(8)of the Indian Constitution expressly provides for Separation of Powers between the different organs of the State, but time and again, the Indian Supreme Court has taken on itself the task of filling in the gaps created by the Legislature and the Executive to do „justice‟. While doing so, the judiciary has been often criticized for overstepping its limits. In the case of VineetNarainvs. Union of India, 1998 Cri. L. J. 1208 the Supreme Court had invented a new writ called “continuing mandamus” where it wanted to monitor the investigating agencies which were guilty of inaction to proceed against persons holding high offices in the executive who had committed offences. Furthermore, the Court created by its judicial order a body called the Central Vigilance Commission, which was not contemplated by the statute (the Delhi Special Police Establishment Act, 1946), for supervising the functioning of a statutory body, the Central Bureau of Investigation. The Court also laid down a number of guidelines for the appointments of chiefs of investigating agencies like Central Bureau of Investigation, Central Vigilance Commission and the Enforcement Directorate; apart from the Chiefs of the State Police. These guidelines, apart from being in relation to appointment, were also with regard to their status, transfer and tenure, etc. The question arises whether this was legitimate exercise of judicial power.In the case of Indian Council for EnviroLegal Action Vs. Union of India, (1996) 5 SCC 281the Court passed various orders especially directed towards the States requiring them to submit management plans to control pollution to both, the Central Government as well as the Court. Here, the Court held that it was only discharging its judicial functions in ensuring that it remedies the errors of the executive. In the case of M. C. Mehta vs. Union of India, (2001) 3 SCC 763where a writ was filed with regard to the vehicular pollution in Delhi, the Supreme Court had passed directions for the phasing out of diesel buses and for the conversion to CNG. When these directions were not complied with due to shortage in supply of CNG, the Court held that orders and directions of the Court could not be nullified or modified by State or Central governments. This was a case where, despite several directions being given by the Supreme Court, the government did not act speedily in responding to the Order.

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â&#x20AC;&#x153;The Role Of Judicial Activism In The Implementation And Promotion Of Constitutional Laws And The Court has prescribed norms regarding the running of the prisons and mental intuitions ,9instructed the Government to implement labor laws at construction sites,10recognised admissions in medical colleges throughout India laying down examination schedules,11prescribing hawking zones in metropolitan cities,12 laid down the guidelines for the retail outlets for essential commodities such as LPG,13resolving disputes between public undertakings of Central Government,14 directed the authorities like C.B.I to conduct and complete investigation expeditiously in cases of national importance,15 directed the noxious factories to restart on the technical reports on safety measures,16 prescribed the poverty limits for the low income urban housing17 or set up an expert panel headed by a retired Supreme Court to study the vehicular pollution level18 etc. In these decisions the court did legislate, but in the process was criticized for having infringed upon the executive domain. With due respect to these and other decisions it has to be said that many judges often forget that the judiciary cannot solve all problems in the country. Suppose the Court passes an order that from tomorrow poverty in India, or unemployment, or malnutrition etc. are abolished. Will these orders mean anything? Can they really be implemented? India is a poor country with limited financial resources. Moreover, many such orders e.g. for interlinking rivers vide In re Networking of Rivers (2012) 4 S.C.C. 51 raise great technical and administrative problems, and are really in the domain of the legislature or executive. The most recent case on judicial activism was the case of ArunaRamchandraShanbaugVs. Union of India and Others. JT 2011 (3) SC 300.ArunaShanbaug, a nurse in 1973, while working at a Hospital at Mumbai, was sexually assaulted and has been in a permanent vegetative state since the assault. In 2011, after she had been in this status for 37 years, the Supreme Court of India heard the petition to the plea for euthanasia filed by a social activist claiming to be Arunaâ&#x20AC;&#x;s friend. The Court turned down the petition, but in its landmark judgment (authored by the writer) it allowed passive euthanasia i.e. withdrawal of life support to a person in permanently vegetative state, subject to approval by the High Court.

II.

Trends in Judicial Restraint:-

Rising judicial activism was hindering governance in the country and impacting growth in Asia's third largest economy, finance minister P Chidambaram said. "Nowhere in the world would we see ideal balance between legislature and judiciary. But in India, we have seen intensifying judicial activism, which had impacted the balance of governance," Chidambaram said at The Economic Times Awards for Corporate Excellence. "The balance in India has swung away from the executive and the parliament," he said. "The judiciary has taken an upper hand. Unless the executive has a final say, we cannot have sustained high growth rate. Countries like China, Brazil and Mexico, with a stronger executive authority, have exhibited better growth trajectory," he argued. "Judicial institutions cannot take over governance. We must rediscover the balance between our institutions and we have to reassert the balance between reforms, development and institutions," Chidambaram said. Sounding a note of caution on judicial activism, The President of India Mr. Pranab Mukherjee said judicial pronouncements must respect the boundaries that separate the legislature, executive and judiciary. Making his first visit outside the national capital after assuming the office of President on July 25, Mukherjee also said that everything must be done to protect the independence of judiciary from any form of encroachment. Addressing the valedictory function of the 150th anniversary celebrations of the Madras High Court, he urged judiciary to keep reinventing itself through a process of introspection and self-correction at the same time. In his address, Mukherjee touched upon various issues that dominate legal discourse including judicial accountability and the appointment of judges. The President referred to judicial activism and said the judges through innovation and activism have contributed enormously to expanding the frontiers of justice and providing access to the poorest of the poor.19 The Supreme Court in an order has said that the judiciary must refrain from encroaching on legislative and executive domain otherwise it will boomerang in the form of political class stepping to clip their wings. A bench comprising Justice AK Mathur and Justice MarkandeyKatju said, "If the judiciary does not exercise restraint and over-stretches its limit there is bound to be reaction from politicians and others. The politicians will then step in and curtail the powers or even independence of the judiciary. The judiciary should, therefore, confine itself to its proper sphere, realizing that in a democracy many matters and controversies are best resolved in a non-judicial setting." The court said that justification often given for judicial encroachment into the domain of the executive or legislature is that the other two organs are not doing their jobs properly. Even assuming this is so, the same allegation can then be made against the judiciary too because there are cases pending in courts for half-a-century, bench said. If they are not discharging their assigned duties, the remedy is not judicial interference as it will violate delicate balance of power enshrined in the constitution, remarked the court.20 www.iosrjournals.org

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“The Role Of Judicial Activism In The Implementation And Promotion Of Constitutional Laws And There are many examples where judiciary had encroached upon the turf which was unwarranted. The Jagdambika Pal caseof 1998 involving UP legislative assembly and the Jharkhand assembly case of 2005 are the two glaring examples of deviations from the clearly provided constitutional scheme of separation of powers, said bench. There is broad (though not absolute) separation of powers in the Indian Constitution vide Divisional Manager, Aravali Golf Course vs. Chander Haas, 2008. The Constitution of India did not provide for the judiciary to be a super legislature or a substitute for the failure of the other two organs. Thus, the need arises for the judiciary to lay down its own limitations. Some people say that the judiciary can enter into the domain of the executive or legislature because these organs are not functioning properly. But then it can also be said that the judiciary, too, is not functioning properly, there is great delay in deciding cases, corruption in a section of the judiciary, etc. Should then the legislature or executive take over the judiciary‟s function? One of the examples of judicial restraint is the case of State of Rajasthan Vs. Union of India,AIR 1977 SC 1361, in which the court rejected the petition on the ground that it involved a political question and therefore the court would not go into the matter. In S.R. Bommai Vs. Union of India,(1994) 3 SCC 1, the judges said that there are certain situations where the political element dominates and no judicial review is possible. The exercise of power under Art.356 was a political question and therefore the judiciary should not interfere. Ahmadi J. said that it was difficult to evolve judicially manageable norms to scrutinize the political decisions and if the courts do it then it would be entering the political thicket and questioning the political wisdom, which the court must avoid.21 In Almitra H. Patel Vs. Union of India, (2000) 2 SCC 679, where the issue was whether directions should be issued to the Municipal Corporation regarding how to make Delhi clean, the Court held that it was not for the Supreme Court to direct them as to how to carry out their most basic functions and resolve their difficulties, and that the Court could only direct the authorities to carry out their duties in accordance with what has been assigned to them by law. Also, in Union of India Vs. Kishan K. Sharma, (2004) 5 SCC 518,when the High Court issued a Mandamus to the Government to pay a particular scale to its officers, the Supreme Court laying down the boundaries of judicial activism in general held that such Mandamus would not be permissible as fixation of salaries was an administrative decision. Similarly, creation of a post is an administrative or legislative functions, and cannot be done by the court vide Divisional Manager, Aravali Golf Course (supra)

III.

Conclusion:-

However, the governance cannot be replaced by the judicial institutions. There is a need to discover a balance between judicial and executive institutions. We need to reassert the balance between reforms, development and institutions. Judicial activism should not be used to lead to the Constitutional principles of separation of power getting eroded. Our Hon‟ble Judges should not cross their limits in the name of judicial activism and not to try to take over the functions of other organs of administration. Judicial pronouncements must respect the boundaries that separate the Legislature, Executive and Judiciary. TheJudicial Activism has touched almost every aspect of life in the present times. Be it the case of bonded labor, illegal detentions, torture and maltreatment of women, the implementation of various provisions of the constitution, environmental problems, health, sports etc. the courts took cognizance of each case and laid down various judgments to protect the basic human rights of each and every member of society. However, the politicians and some constitutional experts criticize judicial activism and on the other hand the lawyers and public has welcomed it with warm hands. It is important to note that judicial Activism has so many merits but it has certain demerits. Here it is important to note that we cannot lead the government on judicial basis only. Frequent confrontation between the Legislature, Executive and the judiciary will also damage our well established democratic system of governance. The members of every institutionsworn to uphold the constitution, which alone is supreme. Both sides will maintain and respect the line of demarcation of power under the constitution and will not allow a conflict to develop between them. By evolving the doctrine of Basic Structure of the Constitution, the Hon‟ble Supreme Court of India has limited the power of Parliament to amend the constitution. The court‟s increased activism has been good and contributed a lot for India‟s democracy. The expensive, technical justice now becomes inexpensive and nontechnical through the growth of Public Interest Litigations. The important question today is not whether the Supreme Court could activate its judicial role, but to what extent the concepts of Judicial Activism and creativity are exercised. A balance between the powers of Judiciary, Legislature and executive is necessary to carry the nation on the true path of democracy.

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“The Role Of Judicial Activism In The Implementation And Promotion Of Constitutional Laws And References:[1]. [2].

[3]. [4]. [5]. [6]. [7]. [8]. [9]. [10]. [11]. [12]. [13]. [14]. [15]. [16]. [17]. [18]. [19]. [20]. [21].

See for instance some of the work that are on judicial activism without really defining the term. Chad M. Old father, “Defining Judicial Inactivism: Models of Adjudication and the Duty to Decide” (2005) 94, Geo. L.J. 121, 122 Keenan D. Kmiec, “The Origin and Current Meanings of "Judicial Activism," (2004) 92, Cal. L. Rev., 1441, 1442;See also Bradley C. Canon, “A Framework for the Analysis of Judicial Activism” in Stephen C. Halpem& Charles M. Lamb eds., Supreme Court Activism And Restraint 1982, 385, 386 (describing prevalent activism debates as "little more than a babel of loosely connected discussion"). Cardozo Benjamin N, The Nature of the Judicial Process, Universal Law Publishing Co.Pvt.Ltd., Delhi, (2004) Paul Mahoney, “Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin” (1990) 11, Hum. Rts. L.J. 57, 58. DragoljubPopovic, “Prevailing Judicial Activism over Self Restraint in the Jurisprudence of the European Court of Human Rights” ( 2009) vol. 42, Creighton Law Review, 361 at 363. Thijmen Koopmans, “The Roots of Judicial Activism in Protecting Human Rights: The European Dimension, Studies In Honor Of Gérard J. Wiarda 326 (F Matscher& H. Petzold Eds., 1988). JUDICIAL ACTIVISM IN INDIA- An Overview (By Arjun.M, Administrative Assistant, Centre for Public Policy Research) Article 50: The State shall take steps to separate the judiciary from the executive in the public services of the State. SheelaBarsevs. State of Maharashtra, (1983) 2 SCC 96 Labors on Sala Hydro Electricity Project Vs. State of J & K, (1984) 3 SCC 538 Pradeep Kumar Jain Vs. State of .P., AIR 1984 SC 1420 Bombay Hawkers Union Vs. B.M.C., (1985) 3 SCC 528 Center for PIL Vs. Union of India, 1995 Sppl. (3) SCC 382 ONGC Vs. Collector of Central Excise, 1995 Sppl. (3) SCC 541 (This decision has since been reversed) Supra footnote 51. M. C. Mehta v. Union of India, (1986) 2 SCC 176 Shantisar Builders Vs. L. Narayan, (1990) 1 SCC 520 M. C. Mehta v. Union of India, (1991) 2 SCC 353 Pranab Mukherjee's note of caution on judicial activism PTI Sep 8, 2012, 07.33PM IST SC asks courts to curb judicial activism Sanjay K Singh, TNN Dec 11, 2007, 12.49am IST “Judicial Activism v. Judicial Self-Restraint” athttp://legalsutra.org/933/judicial-activism-v-judicial-self-restraint/ as last on 10 July, 2011

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Attachment B Selective Judicial Activism

Page 110 of 115

Selective Judicial Activism JUSTICE BRENNAN: LIBERAL CHAMPION. By Seth Stern & Stephen Wermiel. Houghton Mifflin Harcourt. 2010. Pp. 688, $35.00.

Geoffrey R. Stone* When the term “judicial activist” was first coined by Arthur Schlesinger, Jr. in 1947, it “did not have a derogatory connotation.”1 By the time William J. Brennan, Jr. had completed his thirty-four years on the Supreme Court, the phrase had become a pejorative, implying the irresponsible exercise of judicial authority. Critics on and off the Court have vilified Brennan and his liberal colleagues for their activism. In 1966, the political scientist Robert McCloskey accused Brennan and his fellow “judicial activists” of creating “Constitutional rules out of whole cloth.”2 Judge Learned Hand complained that the “judicial activists” on the Supreme Court were acting like “a bevy of Platonic guardians.”3 Anthony Lewis reported that critics had vehemently attacked “judicial activists” like Brennan for “taking too much joy” in their own power and “trying too boldly to fix up the wrongs of our system.”4 And Justice Felix Frankfurter castigated the “judicial activists” for making decisions on the basis of “‘their prejudices and their respective pasts and selfconscious desires to join Thomas Paine and T. Jefferson in the Valhalla of “liberty.”’”5 To this day, no Supreme Court nominee—not Anthony Kennedy, not Ruth Bader Ginsburg, not John Roberts, not Elena Kagan—has dared to describe him or herself as a “judicial activist.” Such a selfcharacterization would certainly be the kiss of death for any nominee.

* Edward H. Levi Distinguished Service Professor of Law, The University of Chicago. I would like to thank the University of Chicago Law School’s Leonard Sorkin Law Faculty Fund for its generous support of my work and, most especially, Justice William J. Brennan, Jr., for giving me the extraordinary opportunity to serve as one of his law clerks during the Supreme Court’s 1973 Term. 1. SETH STERN & STEPHEN WERMIEL, JUSTICE BRENNAN: LIBERAL CHAMPION 232 (2010). 2. Id. at 232–33 (quoting Robert G. McCloskey, Reflections on the Warren Court, 51 VA. L. REV. 1229, 1259 (1965)). 3. Id. at 231 (quoting LEARNED HAND, THE BILL OF RIGHTS: THE OLIVER WENDELL HOLMES LECTURES 1958, at 73 (1958)). 4. Id. at 231 (quoting Anthony Lewis, Supreme Court Moves Again to Exert Its Powerful Influence, N.Y. TIMES, June 20, 1964, at E3). 5. Id. at 102 (quoting Melvin I. Urofsky, Conflict Among the Brethren: Felix Frankfurter, William O. Douglas and the Clash of Personalities and Philosophies on the United States Supreme Court, 1988 DUKE L.J. 71, 105 (1988)).

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Is the pejorative “judicial activist” warranted? To answer that question, we must begin with the Court’s economic substantive due process decisions in cases like Lochner v. New York,6 half a century before William Brennan joined the Court. Lochner and its progeny, which held unconstitutional a broad range of progressive legislation regulating such matters as maximum hours and minimum wages, represented a highly controversial form of conservative judicial activism. Over time, Lochner, the bête noire of progressives of that era, came to be “one of the most condemned cases in United States history.”7 Critics of the Lochner-era jurisprudence took away two quite distinct lessons. Some, like Frankfurter, concluded that judicial activism was presumptively illegitimate and unwarranted. The only principled stance for a responsible Justice was one of judicial restraint. As Seth Stern and Stephen Wermiel aptly observe, “Frankfurter believed firmly that judges should act with restraint and largely defer to the elected branches.”8 Indeed, this was “something he had preached as a professor at a time when a conservative Supreme Court was overturning the progressive economic regulations . . . that he favored.”9 It was for this reason that Frankfurter was so condemning of his “judicial activist” colleagues on the Court. Other critics of Lochner, like Hugo Black, William O. Douglas, and William Brennan, took away a very different lesson. In their view, Lochner was wrong not because judicial activism is wrong, but because Lochner was not an appropriate case for judicial activism. It was this view that Chief Justice Harlan Fiske Stone set forth in 1938 in his famous footnote 4 in United States v. Carolene Products Co.10 While burying the doctrine of economic substantive due process, Stone at the same time suggested that “[t]here may be narrower scope for operation of the presumption of constitutionality when legislation . . . restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” or when it discriminates “against discrete and insular minorities” in circumstances in which it is reasonable to infer that prejudice, intolerance, or indifference might seriously have curtailed “the operation of those political processes ordinarily to be relied upon to protect minorities . . . .”11 It was this conception of selective judicial activism that shaped Brennan’s jurisprudence. It is important to emphasize that, Frankfurter to the contrary notwithstanding, this view of the judicial role is not necessarily the product of individual Justices’ personal “prejudices” and experiences.

6. 198 U.S. 45 (1905). 7. BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITUTION 23 (1980). 8. STERN & WERMIEL, supra note 1, at 101. 9. Id. 10. 304 U.S. 144 (1938). 11. Id. at 152–53 n.4.

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Rather, it is deeply rooted in the original understanding of the purpose of judicial review in our system of constitutional governance. The Framers of our Constitution wrestled with the problem of how to cabin the dangers of an overbearing or intolerant majority. For example, those who initially opposed a bill of rights argued that such a list of rights would serve little, if any, practical purpose, for in a self-governing society the majority could simply disregard whatever rights might be “guaranteed” in the Constitution. In the face of strenuous objections from the AntiFederalists during the ratification debates, however, it became necessary to reconsider the issue. On December 20, 1787, Thomas Jefferson wrote James Madison from Paris that, after reviewing the proposed Constitution, he regretted “the omission of a bill of rights.”12 In response, Madison expressed doubt that a bill of rights would “provide any check on the passions and interests of the popular majorities.”13 He maintained that “experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State” that already had a bill of rights.14 In such circumstances, he asked, “What use . . . can a bill of rights serve in popular Governments?”15 Jefferson replied, “Your thoughts on the subject of the Declaration of rights” fail to address one consideration “which has great weight with me, the legal check which it puts into the hands of the judiciary. This is a body, which if rendered independent . . . merits great confidence for their learning & integrity.”16 This exchange apparently carried some weight with Madison. On June 8, 1789, Madison proposed a bill of rights to the House of Representatives. At the outset, he reminded his colleagues that “the greatest danger” to liberty was found “in the body of the people, operating by the majority against the minority.”17 Echoing Jefferson’s letter, he stated the position for judicial review, contending that if these rights are: incorporated into the constitution, independent tribunals of justice will consider themselves . . . the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every

12. Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), reprinted in JACK N. RAKOVE, DECLARING RIGHTS: A BRIEF HISTORY WITH DOCUMENTS 154, 156 (1998). 13. RAKOVE, supra note 12, at 159. 14. Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), reprinted in RAKOVE, supra note 12, at 160, 161. 15. Id. at 162. 16. Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), reprinted in RAKOVE, supra note 12, at 165, 165. 17. James Madison, Speech to the House of Representatives (June 8, 1789), reprinted in RAKOVE, supra note 12 at 170, 177.

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encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.18 This reliance on judges, whose lifetime tenure would hopefully insulate them from the need to curry favor with the governing majority, was central to the Framers’ understanding. Alexander Hamilton, for example, strongly endorsed judicial review as obvious and uncontroversial. The “independence of the judges,” he reasoned, is “requisite to guard the Constitution and the rights of individuals from the effects of those ill humours, which . . . sometimes disseminate among the people themselves” Judges, he insisted, have a duty to resist invasions of constitutional rights even if they are “instigated by the major voice of the community.”19 It was this “originalist” conception of judicial review that informed Justice Brennan’s selective judicial activism. As a rule, he gave a great deal of deference to the elected branches of government—except when he felt such deference would effectively abdicate the responsibility the Framers had imposed upon the Judiciary to serve as an essential check against the inherent dangers of democratic majoritarianism. He therefore invoked activist judicial review primarily in two situations: (1) when the governing majority systematically disregarded the interests of a historically underrepresented group (such as blacks, ethnic minorities, political dissidents, religious dissenters, women, and persons accused of crime), and (2) when there was a risk that a governing majority was using its authority to stifle its critics, entrench the status quo, and/or perpetuate its own political power. Because Brennan played so central a role in crafting many of the key decisions of the Warren Court, it may be useful to note just a few of those decisions to illustrate my point. Consider, for example, Brown v. Board of Education,20 which prohibited racial segregation in public schools; Loving v. Virginia,21 which invalidated laws forbidding interracial marriage; Engel v. Vitale,22 which prohibited school prayer; Goldberg v. Kelly,23 which guaranteed a hearing before an individual’s welfare benefits could be terminated; Reynolds v. Sims,24 which guaranteed “one person, one vote”; Miranda v. Arizona,25 which gave effect to the prohibition of compelled selfincrimination; Gideon v. Wainwright,26 which guaranteed all persons accused of crime the right to effective assistance of counsel; New York Times v.

18. 19. 20. 21. 22. 23. 24. 25. 26.

Id. at 179. THE FEDERALIST NO. 78 (Alexander Hamilton). 347 U.S. 483 (1954). 388 U.S. 1 (1967). 370 U.S. 421 (1962). 397 U.S. 254 (1970). 377 U.S. 533 (1964). 384 U.S. 436 (1966). 372 U.S. 335 (1963).

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Sullivan,27 which limited the ability of public officials to use libel actions to silence their critics; and Elfbrandt v. Russell,28 which protected the First Amendment rights of members of the Communist Party. Each of these decisions clearly reflected the central purpose of judicial review—to guard against the greatest dangers of majoritarian abuse.29 By definition, antimajoritarian decisions generally do not sit well with the majority. It is therefore hardly surprising that this jurisprudence excited biting criticism, especially in the political arena, where candidates curry favor with that very same majority. By the late 1960s, Richard Nixon was able to make the Court’s “judicial activism” a significant issue in national politics. During his nomination acceptance speech in 1968, for example, he insisted that the Court had “gone too far in weakening the peace forces as against the criminal forces in this country and we must act to restore that balance.”30 Nixon decried the activism of the Warren Court and pledged to appoint “strict constructionists” rather than “judicial activists” to the Court. In the discourse of the time, a strict constructionist was a judge committed to judicial restraint. In a few short years, Nixon appointed Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist to the Court. Although these Justices varied over time in their adherence to “strict constructionism,” their presence quickly transformed the Court, leaving Justice Brennan in the minority for the rest of his tenure. The change in the Court’s role since 1968 has been dramatic. In the twenty-five years between 1968 and 1993, shortly after Brennan left the Court, Republican presidents made twelve consecutive appointments to the Supreme Court. According to research by Lee Epstein, William Landes, and Richard Posner, in 1968 the average voting record of the five most liberal Justices (Marshall, Douglas, Brennan, Fortas, and Warren) in civil liberties cases was .185. (This is on a scale in which .000 is the most liberal and 1.000 is the most conservative.) The swing Justice was Earl Warren, whose voting record was .263.31 By 1993, after twelve consecutive Republican

27. 376 U.S. 254 (1964). 28. 384 U.S. 11 (1966). 29. Many of these decisions reflected, indirectly if not directly, the “gravitational pull” of the quest for racial justice and equality. See Burt Neuborne, The Gravitational Pull of Race on the Warren Court, 2010 SUP. CT. REV. (forthcoming 2011) (manuscript at 9–27) (on file with Texas Law Review) (arguing that race exercised a strong influence on the Warren Court’s federalism, separation of powers, and First Amendment jurisprudence); HARRY KALVEN, JR., THE NEGRO AND THE FIRST AMENDMENT 4 (1965) (arguing that recent constitutional decisions relating to race and free speech challenge the law’s prior conceptions of racial equality). 30. Richard M. Nixon, Presidential Nomination Acceptance Speech (Aug. 8, 1968) (transcript available at http://www.presidency.ucsb.edu/ws/index.php?pid=25968). 31. See LEE EPSTEIN, WILLIAM M. LANDES AND RICHARD A. POSNER, ARE JUDGES REALISTS? AN EMPIRICAL STUDY tbl.3-2 (forthcoming HARV. L. REV. 2011); see also Geoffrey R. Stone, Understanding Supreme Court Confirmations, 2010 SUP. CT. REV. (forthcoming 2011) (manuscript at 21) (on file with Texas Law Review).

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appointments, the average voting record of the five most conservative Justices (Thomas, Rehnquist, Scalia, O’Connor, and Kennedy) was .798, and the swing Justice, Anthony Kennedy, had a voting record of .695.32 Thus, the Court majority was roughly as conservative in 1993 as it had been liberal in 1968. Even more striking, by 1993 the “liberals” on the Court were almost as conservative as the “conservatives” on the Court in 1968.33 But what does “conservative” mean in the modern era? In Nixon’s time, the term meant a Justice committed to judicial restraint. But beginning with the Reagan era, this began to change. Justices like Antonin Scalia, Clarence Thomas, John Roberts, and Samuel Alito are anything but restrained. Rather, like Justice Brennan, they employ a form of selective judicial activism. On the one hand, it seems clear that these Justices would have joined few, if any, of the Warren Court decisions I mentioned earlier. On the other hand, though, despite all the conservative rhetoric about “strict constructionism,” “originalism,” “judicial restraint,” and “call[ing] balls and strikes,”34 these conservative Justices have been just as activist as their liberal predecessors, but in a wholly different set of cases. In a series of unmistakably activist decisions, the conservative Justices have held unconstitutional affirmative action programs,35 gun control regulations,36 limitations on the authority of corporations to spend at will in the political process,37 restrictions on commercial advertising,38 laws prohibiting groups like the Boy Scouts from discriminating on the basis of sexual orientation,39 federal legislation regulating guns, age discrimination,

32. EPSTEIN ET AL., supra note 31. 33. The four conservatives in 1968 (Harlan, White, Stewart, and Black) had an average voting record of .521, whereas the four liberals in 1993 (Stevens, Souter, Blackmun, and White) had an average voting record of .436. See EPSTEIN, LANDES & POSNER, supra note 31, at tbl.3-2. 34. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (2005) (statement of John G. Roberts, Jr., Supreme Court C.J. Nominee). 35. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 747–78 (2007) (holding unconstitutional an affirmative action program that took race into account when determining school placement). 36. See McDonald v. City of Chi., 130 S. Ct. 3020, 3050 (2010) (holding that the Second Amendment is applicable to the states and remanding the case for further proceedings); D.C. v. Heller, 554 U.S. 570, 595, 635 (2008) (holding that D.C.’s ban on handgun possession in the home violated the individual right to bear arms conferred by the Second Amendment). 37. See Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 913 (2010) (holding that “[t]he First Amendment does not permit Congress to make . . . categorical distinctions based on the corporate identity of the speaker and the content of the political speech”). 38. See Thompson v. W. States Med. Ctr., 535 U.S. 357, 376–77 (2002) (“If the Government’s failure to justify its decision to regulate speech were not enough to convince us that the FDAMA’s advertising provisions were unconstitutional, the amount of beneficial speech prohibited by the FDAMA would be. . . . [W]e affirm the . . . judgment that the speech-related provisions . . . are unconstitutional.”). 39. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 661 (2000) (overturning application of a state public accommodations law that would have prohibited discrimination based on sexual orientation).

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the environment, and violence against women,40 and policies of the State of Florida relating to the outcome of the 2000 presidential election.41 Nothing about this jurisprudence smacks of “judicial restraint.” To the contrary, it has about it the distinctive air of Platonic guardianship. The challenge is to figure out what theory of judicial review or constitutional law drives this particular form of activism. Although one can readily discern the specific conception of judicial review that undergirds Justice Brennan’s use of judicial activism, which is clearly rooted in the concerns of Jefferson, Madison, and Hamilton, no similar principle of judicial review or constitutional methodology explains the jurisprudence of contemporary conservative judicial activists. To understand Brennan’s theory of activist judicial review, all one needs to do is to look at the results and then ask, “Why these cases and not others?” If one attempts the same inquiry of the decisions of the current conservative Justices, however, no principled explanation emerges for their version of selective activism. Rather, to return to Justice Frankfurter’s ill-tempered observation, the selective activism of Justices like Scalia, Thomas, Roberts, and Alito seems to be born out of “‘their prejudices and their respective pasts and self-conscious desires to join [Ronald Reagan and George W. Bush] in the Valhalla of “liberty.”’”42 The point, in other words, is that judicial activism itself is neither inherently good nor inherently bad. It is a legitimate and essential method of constitutional interpretation when used in appropriate circumstances. I sometimes wonder what constitutional law might look like today if Justices with the same vision as Justice Brennan had remained a majority on the Supreme Court over the past forty years. It is not so difficult to imagine such a state of affairs. Had Hubert Humphrey defeated Richard Nixon, Jimmy Carter defeated Ronald Reagan, or Al Gore defeated George W. Bush, the path of constitutional law might have been very different. What is more difficult to imagine is how constitutional law might have evolved in that counterfactual universe. It has been so long since there has been a liberal majority on the Court that it is difficult even to conceive what a liberal jurisprudence might look like today.

40. See Printz v. United States, 521 U.S. 898, 933 (1997) (holding that “[t]he mandatory obligation imposed on CLEOs to perform background checks on prospective handgun purchasers plainly runs afoul of [the law]”); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000) (holding “that the [Age Discrimination in Employment Act] is not a valid exercise of Congress’ power”); Solid Waste Agency v. United States Army Corps of Eng’rs, 531 U.S. 159, 174 (2001) (holding a federal law claiming jurisdiction over ponds and mudflats was unconstitutional); United States v. Morrison, 529 U.S. 598, 627 (2000) (holding that a federal law dealing with violence against women was not constitutional). 41. See Bush v. Gore, 531 U.S. 98, 103 (2000) (invalidating Florida’s “use of standardless manual recounts” as violative of the “Equal Protection and Due Process Clauses”). 42. STERN & WERMIEL, supra note 1, at 102 (quoting Melvin I. Urofsky, Conflict Among the Brethren: Felix Frankfurter, William O. Douglas and the Clash of Personalities and Philosophies on the United States Supreme Court, 1988 DUKE L.J. 71, 105).

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Here are some possibilities: the counterfactual Court might have held, not that affirmative action is unconstitutional, but that it is sometimes constitutionally required; it might have held, not that cigarette companies have a constitutional right to shill their products to children,43 but that children have a constitutional right to an adequate and equal education;44 it might have held not that silence constitutes waiver of the right to remain silent,45 but that individuals accused of a crime have a constitutional right to DNA testing; it might have held, not that the government can constitutionally ban partial birth abortions,46 but that it cannot constitutionally ban stem-cell research in order to enforce the faith-based beliefs of the religious right; it might have held, not that corporations have a constitutional right to spend millions to buy the elected representatives of their choice,47 but that public officials cannot constitutionally use partisan gerrymandering to ensure their perpetuation in power;48 it might have held, not that the Boy Scouts have a constitutional right to discriminate against gays and lesbians,49 but that gays and lesbians have a constitutional right to marry. Constitutional interpretation is not a mechanical, value-free enterprise. It requires judges to exercise judgment. It calls upon them to consider text, history, precedent, values, and ever-changing social and cultural conditions. It requires restraint, wisdom, empathy,50 and intelligence. Perhaps above all, it requires a recognition of the Judiciary’s unique strengths and weaknesses and a deep and accurate understanding of our nation’s most fundamental constitutional aspirations.

43. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 566 (2001) (holding that regulations on tobacco advertising violate the First Amendment because they fail Central Hudson’s four-part analysis). 44. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 54–55 (1973) (holding that the Texas system of financing public education rationally furthers a legitimate state purpose or interest and therefore satisfies the Equal Protection Clause). 45. See Berghuis v. Thompkins, 130 S. Ct. 2250, 2264 (2010) (holding that unless a suspect explicitly invoked his Miranda rights he waived them by making voluntary statements and that police did not have to obtain a waiver of the suspect’s Miranda rights before interrogating him). 46. See Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (holding that the Partial-Birth Abortion Ban Act of 2003 was not unconstitutional on its face). 47. See Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 913 (2010) (holding that “[t]he First Amendment does not permit Congress to make . . . categorical distinctions based on the corporate identity of the speaker and the content of the political speech”). 48. See Vieth v. Jubelirer, 541 U.S. 267, 281 (2004) (holding that “political gerrymandering claims are nonjusticiable” because there are no “judicially discernable and manageable standards for adjudicating political gerrymandering claims”). 49. See Boy Scouts of America v. Dale, 530 U.S. 640, 644 (2000) (holding that applying New Jersey’s public accommodations law to require the Boy Scouts to readmit an avowed homosexual and gay rights activist violated the Boy Scouts’ First Amendment right of expressive association). 50. Richard Cotton, one of Justice Brennan’s law clerks in the Court’s 1972 term, observed that Brennan “had the ability to see a case through the eyes of the people involved.” STERN & WERMIEL, supra note 1, at 206.

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As Justice Brennan himself observed, the Supreme “‘Court is not a council of Platonic guardians given the function of deciding our most difficult and emotional questions according to the Justices’ own notions of what is just or wise or politic.’”51 Rather, “‘our government structure assigns to the people’s elected representatives the function of making policy for handling the social and economic problems of state and nation’” and “‘the impropriety of a judiciary with life tenure writing its own social and economic creed into the Constitution is therefore clear.’”52 At the same time, though, Brennan insisted that “‘[j]ust as an individual may be untrue to himself, so may society be untrue to itself.’”53 The Court’s responsibility in interpreting and applying the Constitution, he rightly insisted, is to “‘keep the community true to its own fundamental principles.’”54

51. Id. at 233 (quoting Justice William James Brennan, The U.S. Constitution, Speech at Maxwell Air Force Base (Sept. 9, 1963), reprinted in 2 AIR WAR C. SUPPLEMENT 3, 43). 52. Id. (quoting A Visit with Justice Brennan, LOOK, Dec. 18, 1962). 53. Id. at 234 (quoting Justice William James Brennan, Bouton Lecture at Princeton University (Feb. 4, 1969)). 54. Id.

Attachment C Proper Judicial Activism

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PROPER JUDICIAL ACTIVISM Greg Jones* Judicial review, and judicial activism in particular, have never enjoyed a wealth of popular support in this country. Indeed, the practice of judges overturning legislative enactments has been the subject of several sharp critiques over the years, particularly in the area of constitutional law. As President, Ronald Reagan described the kinds of judges of which he disapproves as those who love "short-circuiting the electoral process and disenfranchising the people through judicial activism."1 His one-time nominee to the Supreme Court, Robert Bork, has commented that "[wle have known judicial activism of the right and of the left; neither is legitimate." 2 Regardless of ideology, it has become a staple of opponents of a particular judicial decision to accuse the court of 3 activism, which is synonymous with an affront. Despite its negative connotation, judicial activism, in several forms, has a long, if not storied, tradition in this country. Since Marbury v. Madison,4 striking down legislation passed at the federal and state levels has been met with varying degrees of acceptance and criticism. It is the premise of this paper that in constitutional law there is a correct kind of judicial activism, toward which the Supreme Court should be focused. As mandated by the Constitution, the proper form of judicial activism is activism based upon preserving the structure of our constitutional government. Professor Steven Calabresi comments, "There is nothing in the U.S. Constitution that should absorb more completely the attention of the U.S. Supreme Court" than the structures embedded in "[t]hat great document."s This article aims to demonstrate that a faithful rendering of the Constitution by the Supreme Court demands

Law clerk to Chief Justice Roy S. Moore of the Alabama Supreme Court; J.D., Regent University School of Law. *

Ronald Reagan, I PUB. PAPERS 1270, (Oct. 21, 1985).

2 Id. at 41, Jan. 14, 1988. In describing Bork and his "disciples," Professor Harry Jaffa says they believe "that judicial activism is usurpation, denying to the political processes of democracy their rightful role in governance." Harry V. Jaffa, Jaffa Replies to His Critics 235 app. IV-A, at 292 (The Closing of the Conservative Mind) in ORIGINAL INTENT AND THE FRAMERS OF THE CONSTITUTION (Harry V. Jaffa et al., 1994). In part, that

is exactly the sentiment this paper hopes to refute. Proper judicial activism flows from the nature of our system, as will be shown, and as such is not usurpation. 3 See David L. Anderson, Note, When Restraint Requires Activism: Partisan Gerrymandering and the Status Quo Ante, 42 STAN. L. REV. 1549, 1559 (1990). 4 5 U.S. (1 Cranch) 137 (1803). 5 Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MIcH. L. REV. 752, 770 (1995).

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concentration on the structures of government as the most justified and least dangerous way to practice judicial review. To explain and substantiate this claim, it is necessary to divide this paper into five parts. Part I defines the terms involved in order to help the reader better understand what is and is not being argued. Part II explains the vast importance of structure to our constitutional scheme as it relates to the Founding and today. Part III spells out why judicial review is a tool best employed on the structural front. Part IV examines some criticisms of and alternatives to the approach espoused here, as well as some responses to those various views. Finally, Part V reflects on why this argument is important to our world today and to the government in which we participate. I. DEFINITIONS In general terms, the structures of the Constitution are not difficult to discover or define. They include the separation of powers, checks and balances, federalism, bicameralism, representation, an independent judiciary, and judicial review. 6 Many of these structures are rarely, if ever, questioned on propriety or efficacy grounds. "Elections are held when they are supposed to be held, presidents and congresses come and go, California and Wyoming send two representatives to the Senate, [and] constitutional amendments are proposed and are almost always defeated . . . ."7 Most of these structures have held a consistent definition since the Founding; after all, little is left to the imagination when the Constitution says that Congress shall consist of two houses or that a senator has a six-year term of office. Two of these structures, however, have displayed fluid tendencies over the years, causing many to question their wisdom and even their very existence: the separation of powers and federalism. 8 Ironically, the Founders considered these the most important innovations placed in the Constitution,9 and are the structures on which this article will focus.10 6 Edwin Meese III, The Law of the Constitution, 61 TUL. L. REV. 979, 982 (1987). 7 Steven G. Calabresi, The Tradition of the Written Constitution: A Comment on Professor Lessig's Theory of Translation,65 FORDHAM L. REV. 1435, 1452 (1997). 8 The legitimacy of judicial review has also been questioned at length, given the lack of any Constitutional text on the subject. However, there seems little doubt that, whether the device was intended by the Framers or not (this paper will make a structural argument that it was), it is not going away. As Professor Erwin Chemerinsky has pointed out, "What we really should be talking about is what is the appropriate content of judicial review, not whether the power exists or not." Erwin Chemerinsky, The Goldwater Institute and the Federalist Society: Federalism and Judicial Mandates, 28 ARIz. ST. L.J. 17, 51 (1996). That is exactly what this paper is about-the appropriate content of judicial review. 9 WILLIAM EATON, WHO KILLED THE CONSTITUTION: THE JUDGES V. THE LAW 3 (1988): "The Founding Fathers understood thoroughly the corruptions of power and the temptations of office. They feared most of all the tyranny of unchecked government power.

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The concept of judicial activism requires some careful elucidation. It falls under the rubric of what is commonly called judicial review." Judicial review occurs, as Justice Marshall famously put it, If a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; court or conformably to the constitution, disregarding the law; the 12 must determine which of these conflicting rules governs the case.

At the broadest level, judicial activism is any occasion where a court intervenes and strikes down a piece of duly enacted legislation. This is activism because it "impose Is] a judicial solution over an issue erstwhile subject to political resolution." 13 The key to categorizing this broad definition of activism is determining on what basis the legislation or policy is struck down. For instance, Professor Lino Graglia describes judicial activism as "the practice by judges of disallowing policy choices by other governmental officials or institutions that the Constitution does not clearly prohibit."14 Professor Graglia's version of activism is actually improper judicial activism because it possesses no constitutional basis. However, rarely, if ever, does a judge admit in an opinion that his

And so they fashioned a system of checks and balances to operate against the institutions of government to which particular powers are granted." Id. 10 While I will elaborate extensively on these devices, it is important to note that this paper does not attempt to present any definitive standards the Supreme Court ought to use in the line-drawing problems raised in cases dealing with these issues. What is an executive function as opposed to a legislative one, how much sovereignty do the states retain, and how far does the power to regulate commerce extend are all intriguing questions, but each are topics for full papers in themselves. For some sample answers to these questions along the lines of the kind of jurisprudence espoused in this paper, see Gary Lawson & Patricia Granger, The "Proper" Scope of Federal Power: A JurisdictionalInterpretation of the Sweeping Clause, 43 DUKE L.J. 267 (1993) (arguing for a structural interpretation of the Necessary and Proper Clause which fundamentally restricts its scope); Thomas W. Merrill, Toward a Principled Interpretationof the Commerce Clause, 22 HARV. J.L. & PUB. PoL'Y 31 (1998) (presenting a clearer alternative to the understanding in Lopez of the Commerce Clause for the purpose of enabling the Court to continue to police constitutional limitations on federal power); Bernard Schwartz, OfAdministrators and Philosopher-Kings:The Republic, the Laws, and Delegationsof Power, 72 Nw. U. L. REV. 443, 446 (1977) (reflecting on the practical nonexistence of the current delegation doctrine). My concern is drawing attention to the intrinsic nature and importance of these structures, and consequently, the need for vigorous judicial policing in these areas. I Of course, judicial activism also can occur when no constitutional question is at issue. This paper, however, focuses on the use of activism in constitutional cases. 12 Marbury v. Madison, 5 U.S. 137, 178 (1803). 13 See Anderson, supra note 3, at 1570. 14 Lino A. Graglia, It's Not Constitutionalism,It's JudicialActivism, 19 HARV. J.L. & PUB. POL'Y 293, 296 (1996).

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decision does not come from the Constitution. Thus, more precision is necessary to differentiate proper from improper activism. Improper activism finds its roots in the "belief that law is only policy and that the judge should concentrate on building the good society according to the judge's own vision."'5 Judge William Wayne Justice, 16 a self-proclaimed activist, is illustrative when he describes his own thinking in a certain case: "Having found a constitutional violation by a state institution, I acted upon the belief that simply declaring a practice unconstitutional was not the limit of my duty as a judge. Judges are more than social critics. The power of law and justice lies in actions, not pronouncements." 17 Thus, this kind of activism employs "natural law or basic notions of humanity, land] the necessary consultation of extratextual source[s] for constitutional interpretation."18 It is the kind of activism Judge Skelly Wright called, when referring approvingly to the Warren Court, "judging in the service of conscience."19 In contrast, proper judicial activism stresses restraint, even when striking down duly enacted legislation. In this understanding of judicial review, the power to initiate policy remains with the legislature or the executive. The Court merely exercises a judicial veto in the event that an act of one of the other branches of government goes beyond the power granted to that branch by the Constitution, or is in conflict with some provision of the 20 Constitution. While practicing this "restraint in activism," it is my contention that the Supreme Court's focus ought to be on the structures of the Constitution, especially the separation of powers and federalism. In discussing the history of Supreme Court judicial review, Calabresi notes, "The Supreme Court's main role until 1937 was to police the lines of jurisdictional competence set out in the constitutional text .... Federalism and separation of powers were thus core concerns of American constitutional law .. ."21 They should be again. As we shall see, proper judicial activism focuses on policing the boundaries of power between the jurisdictional government entities 15 Archibald Cox, The Role of the Supreme Court: Judicial Activism or SelfRestraint, 47 MD. L. REV. 118, 121-22 (1987). 16 United States District Court for the Eastern District of Texas. 17 William Wayne Justice, The Two Faces of JudicialActivism, 61 GEO. WASH. L. REV. 1, 10 (1992). 18 Id. at 4. 19 J. Skelly Wright, The Judicial Right and the Rhetoric of Restraint: A Defense of Judicial Activism in an Age of Conservative Judges, 14 HASTINGS CONST. L.Q. 487, 489 (1987). 20 See EATON, supra note 9, at 17. 21 Steven G. Calabresi, Textualism and the CountermajoritarianDifficulty, 66 GEO. WASH. L. REV. 1373, 1375 (1988) (footnotes omitted).

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within our system. Improper activism seeks to substantively correct perceived injustices in the law through the use of any number of extraconstitutional sources. The bottom line reason why the former is to be preferred to the latter is that judicial review based upon the Constitution demands nothing less. As Judge Frank Easterbrook 22 puts it, "The text of the Constitution is about structure - about form. Application of the Marbury principle means that rules . .. must be applied mechanically. Anything else is faithless to the premise of constitutionalism.23 II. OUR CONSTITUTIONAL SCHEME AND THE IMPORTANCE OF STRUCTURE A. The Principlesof Structure On a recent visit to the campus of Regent University, Associate Justice of the Supreme Court Antonin Scalia made an observation to the matriculating law students that where Constitutional Law is concerned, "structure is destiny."24 Stalwart proponents of the Bill of Rights would disagree, but the point still maintains cogent force. To put Justice Scalia's point a slightly different way, "[T]he text of our written Constitution devotes only fifty-two words to the protection of individual liberty from the depredations of state government in the Fourteenth Amendment, while devoting several thousand words to the subject of allocating and dividing power among government institutions."25 That point reminds us of something that many tend to forget: the whole of our Constitution was written without a Bill of Rights originally in mind. James Wilson said, "[Ilt would have been superfluous and absurd to have stipulated with a fcederal body of our own creation, that we should enjoy those privileges, of which we are not divested either by the intention or the act [the Constitution], that has brought that body into existence." 26 When we keep this fact in mind, the awesome importance of

22 United States Court of Appeals for the Seventh Circuit. ?3 Frank H. Easterbrook, Formalism, Functionalism, Ignorance, Judges, 22 HARV. J.L. & PUB. POL'Y 13, 18 (1998). 24 Justice Antonin Scalia, Address at Regent University (Fall 1998). 25 Calabresi, supra note 21, at 1376-77. 26

JAMES WILSON, JAMES WILSON'S SPEECH AT A PUBLIC MEETING (October 6, 1787),

reprintedin 1 DEBATE ON THE CONSTITUTION, at 64 (Bernard Bailyn ed., 1993) [hereinafter 1 DEBATES]. Several other Founders made similar statements. See Answers to Mason's "Objections", "Marcus"[James Iredell] I-V, NORFOLK AND PORTSMOUTH JOURNAL, Feb. 20,

1788, in 1 DEBATES, supra, at 364; Benjamin Rush, Benjamin Rush to David Ramsay, COLUMBIAN HERALD (Charleston, S.C.), Apr. 19, 1788, reprinted in 2 DEBATE ON THE CONSTITUTION, 417 (Bernard Bailyn ed., 1993) [hereinafter2 DEBATES]; John Marshall on the Fairnessand Jurisdictionof the Federal Courts, in 2 DEBATES, supra, at 740.

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structure to our constitutional scheme, in the light of history, becomes 27 more readily apparent. Chief Justice John Marshall reminds us that "[tihe security of a people against the misconduct of their rulers, must lie in the frequent recurrence to first principles, and the imposition of adequate constitutional restrictions." 28 Following the jurist's sage advice, we start with the first principles upon which the structure of this government was designed to operate. The overarching practical principle guiding the Founders was a fear of the concentration of political power in government. "[I]t would be difficult to deny that in establishing their complex structure, the Framers were virtually obsessed with a fear bordering on what some might uncharitably describe as paranoia - of the concentration of political power."29 This fear arose out of another first principle, that man by his nature is corrupt. Madison stated it exquisitely: It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself.30 The "devices" he refers to are the structures of government. For, if it 31 is true that "[e]nlightened statesmen will not always be at the helm," then "the defect must be supplied, by so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places."32 In essence, the Founders devised the tools of separation of powers, federalism, checks and balances, and judicial review to keep at 27 "So convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary." Clinton v. City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring). 28 Fletcher v. Peck, 10 U.S. 87, 144 (1810). 29 Martin H. Redish & Elizabeth J. Cisar, "If Angels Were to Govern". The Need for PragmaticFormalism in Separationof Powers Theory, 41 DuKE L.J. 449, 451 (1991). 30 THE FEDERALIST No. 51 (James Madison), reprintedin 2 DEBATES, supra note 26, at 164. As Madison observed elsewhere, "The latent causes of faction are thus sown in the nature of man; and we see them every where brought into different degrees of activity, according to different circumstances of civil society." THE FEDERALIST No. 10 (James Madison), reprintedin 1 DEBATES, supra note 26, at 406. 31 THE FEDERALIST No. 10 (James Madison), reprintedin 1 DEBATES, supra note 26, at 407. 32 THE FEDERALIST No. 51 (James Madison), reprintedin 2 DEBATES, supra note 26, at 163.

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bay the grasping desires of people in government to obtain more power. 33 The best way to achieve that result was to divide power among various 34 individuals and groups. A third major principle underlying this system is that "The government of the United States has been emphatically termed a government of laws, and not of men." 35 This means that rules are followed despite circumstances and the law offers favor to no one. As Judge Bork put it during his confirmation hearings: "The judge, to deserve that trust and that authority, must be every bit as governed by law as is the Congress, the President, the State Governors and legislatures, and the American people. No one, including a judge, can be above the law." 36 Connected with this principle is the fact that we have a 37 written constitution, which carries with it certain implications. The first implication of our written constitution is that "(tihe Constitution created a Federal government of limited powers." 38 The government, therefore, cannot enlarge or contract its powers without amending the Constitution. The second implication is that the courts usually should invoke the Constitution as an instrument of continuity in the system. This is how judges employed the Constitution originally. In the past, "Decisions holding acts unconstitutional had done no more than uphold or block legislative or executive initiatives."39 The reason for this necessarily follows from the first implication: if the government's powers are limited and enumerated, then a judge invoking the Constitution has only so much material to call upon in making his decision. Charles Cooper, former clerk to Chief Justice Rehnquist, elaborates: "Once a 33 See John Fonte & John Andrews, Why 'The Federalist'Belongs in the Classroom, INDEPENDENCE ISSUE PAPER (Independence Institute), Dec. 6, 1991, at http://i2i.org/SuptDocs/Education/FederalistBelongs.htm (last visited Nov. 15, 2001). In a sense, the entire American constitutional edifice of a democratic republic with majority rule and minority rights, federalism, limited government, and the separation of powers among legislative, executive and judicial branches is based [upon] the Founders' concept of human nature as derived from their experience and their reading of history. 34 See Calabresi, supra note 5, at 785-86. 35 Marbury v. Madison, 5 U.S. 137, 163 (1803). 36 Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States: Hearings Before the Comm. on the Judiciary, United States Senate, 100th Cong. 103 (1987) (opening statement of Robert H. Bork). This speaks to the boundaries within which a judge can make a ruling. Improper judicial activism, as I said earlier, relies on the judge's personal predilections of what the law should be, rather than what the law is. The hope is that structural activism is less likely to be used this way, and thus conforms to this important principle of our republic. 37 Calabresi, supra note 7, at 1438. 38 Gregory v. Ashcroft, 501 U.S. 452, 457 (1991); see also, United States v. Lopez, 514 U.S. 549, 552 (1995) ("The Constitution creates a Federal Government of enumerated powers."). 39 Cox, supra note 15, at 128.

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judge ventures beyond the Constitution and the laws of our society, he has only his individual conscience to call upon, and a judge's conscience is not law." 40 In other words, the judge should not amend the Constitution. The Constitution should be a landmark of destination in constitutional jurisprudence, not a landmark of departure. The third implication of our written constitution is that judicial review is inferred. 41 Limited powers and written-down boundaries imply that there must be some enforcement of those provisions, since "Ithe distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed." 42 Because "[uit is emphatically the province and duty of the judicial department to say what the law is,"43 the duty for policing the boundaries of Constitutional power falls prominently on the courts. In addition to a fear of centralized political power, the inherent corrupt nature of man, and the establishment of a government of laws with a written constitution, another key principle to understanding the role of structure in our government is the belief that "[n] o man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.""4 This rule represents another justification for judicial review. If Congress could pass laws without any check on whether the legislation was constitutional, it would "subvert the very foundation of all written constitutions," 5 because Congress, not the Constitution, would be the 46 supreme law of the land. A final principle concerning structure and the foundation of our government, one that cannot be over-stressed, is that the constitutional design exists to protect the people, not just abstract ideas. In other words, "Any purported dichotomy between constitutional structure and

Charles Cooper, Panel Discussion,supra note 8, at 59. See Marbury v. Madison, 5 U.S. 137, 177-78 (1803); see also supra text accompanying note 11; see also EATON, supra note 9, at 14. 42 Marbury, 5 U.S. at 176-77. 43 Id. at 177. This particular passage is often quoted as purported support by Marshall of judicial exclusivity in constitutional interpretation. The misrepresentation is unfortunate because all Marshall was referring to, in the context of the opinion, is the duty of the judiciary to explain the law when a case comes before it. Of course the judge will tell the parties what the law is in adjudicating a dispute; that does not mean that Congress and the President are not able to make their own determinations of what the Constitution means. Indeed, Congress does so each time it passes legislation. 44 THE FEDERALIST NO. 10 (James Madison), reprintedin 1 DEBATES, supra note 26, at 406. 45 Marbury, 5 U.S. at 178. 46 John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311, 1383 (1997); see also City of Boerne v. Flores, 521 U.S. 507, 529 (1997). 40 41

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constitutional rights is a dangerous and false one." 47 Government institutions are designed to serve as buffers against encroachments on personal liberties. 48 This connects to the previous point that the Bill of Rights is not the whole or even the focus of the Constitution. The Bill of Rights was a supplement to the original Constitution, not a replacement. "The Bill of Rights and the structural elements of the Constitution should be viewed as a whole . . . ."49 To give short shrift to the structures of our Constitution is to do great violence to the system as a whole. "[Tihe entire Constitution was created to avoid tyranny and protect liberty. To separate out the individual rights provisions for special judicial protection ignores the document's careful intertwining of 'backup' systems." 50 Moreover, not only does "bifurcation between constitutional structure and substantive law" lead to unfaithful renderings of the text, it also "leads to most unsatisfactory conclusions."51 These principles lead to one conclusion: that structure is vitally important to any proper understanding of the Constitution and, consequently, to proper use of judicial review. "The Framers of the Constitution could not command statesmanship. They could simply provide structures from which it might emerge." 52 The Founders did the only thing they could to provide for a lasting Constitution: frame the system for success, because after they died the substantive actions of government would be up to succeeding generations. If the system is ignored or, worse, deliberately sabotaged, then the parchment-inscribed words of the Constitution may as well turn to dust; the checks and balances designed to counteract man's power-hungry ambitions would be worthless, and even the precious freedoms embodied in the Bill of Rights would prove little protection against the onslaught of concentrated political power.5 3

47 48

Redish & Cisar, supra note 29, at 452.

Id.

Yoo, supra note 46, at 1392. Redish & Cisar, supra note 29, at 493. 51 Richard A. Epstein, The Cartelizationof Commerce, 22 HARV. J.L. & PUB. POL'Y 209, 209 (1998). As usual, Epstein deals with the practical consequences of the structural theories on the market, rather than their logical pull. This particular article of Epstein's does not primarily focus on policy, but for an excellent piece focusing on this angle, see Richard A. Epstein, The ProperScope of the Commerce Power, 73 VA. L. REV. 1387 (1987). 52 Clinton v. City of New York, 524 U.S. 417, 452-53 (1998) (Kennedy, J., concurring). 53 See Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting). 49 50

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B. The Frameworkof Structure 1. Separation of Powers Given their general importance, it is prudent to examine more closely each of these structures, and how they are intended to work. Light will be shone on these structures, bearing in mind the impact that proper judicial activism should have on each. There were no secrets to the overarching plan of the Founders in writing the Constitution. They designed a national government of limited powers, with those powers divided among the three branches, each with a different function and different personnel, and all of this in the context of a federal system in which a large amount of the totality of all governmental power would be reserved to the states.5 4 Two major features of that design are separation of powers and federalism. In arguing for passage of the Constitution, Madison tells us that the "accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny." 5 Because of this, the Founders wrote the principle of separation of powers directly into the Constitution. 56 As noted above, the Founders' primary concern was preventing the concentration of political power, and the separation of powers went directly to this goal. The idea was grounded on "the deceptively simple principle that no branch may be permitted to exercise any authority definitionally found to fall outside its constitutionally delineated powers." 57 The theory holds that if a person or body is given power to do two or all three of these functions, it would be very easy to go against the people's wishes and deny freedom unjustly. For instance, if a person possessing such power promulgated a law ordering that all babies under the age of two should be killed, that person could implement the law as well using the executive power. There would be no way to prevent the execution of the unjust law. If the legislative and executive functions are divided as the Constitution provides, however, then the executive could simply refuse to implement 54 Pasco Bowman, The Separation of Powers: Myth or Reality?, in DERAILING THE CONSTITUTION 114, 117 (Edward B. McLean ed., 1995). 55 THE FEDERALIST NO. 47 (James Madison), reprintedin 2 DEBATES, supra note 26,

at 121.

56 "All legislative Powers herein granted shall be vested in a Congress of the United States .... U.S. CONST. art. I, ยง 1. "The executive Power shall be vested in a President of the United States of America." U.S. CONST. art. II, ยง 1, cl. 1. "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish." U.S. CONST. art. III, ยง 1. 57 Redish & Cisar, supra note 29, at 453.

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the unjust law, protecting the citizenry. Additionally, since the judicial department in such a system is separate and independent from the other two, it could declare the law void and have it thrown out altogether, using the power of judicial review. Of course, that is the theory. As the Supreme Court has noted, for the Founders, "[Tihe doctrine of separation of powers was not mere theory; it was a felt necessity."58 Therefore, Madison and the others believed that "a mere demarkation [sic] on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands."59 They needed more than the words in the Constitution to insure that this vital principle would be observed. To that end, the Founders included what have become known as checks and balances in the framework of the Constitution. The goal was a government where "the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others."60 When Madison said, "[aimbition must be made to counteract ambition," 61 he meant, in part, that each branch should watch the others. Thus, we have the Presidential veto, Senate confirmation of Presidential appointments, judicial appointments by the President, and so on. "[The Constitution] enjoins upon its branches separateness but interdependence, autonomy 62 but reciprocity." The Founders were attacked for this "mixture" of powers, so ingrained was the idea of separation in the minds of the people.63 Yet, because they believed that the doctrine needed to be more than a "parchment barrier," the Founders stuck to their proposal. The men who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of the three branches of

58 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 593 (1952) (Frankfurter, J., concurring). 59 THE FEDERALIST No. 48 (James Madison), reprintedin 2 DEBATES, supra note 26, at 141. 60 Id. at 139. 61 THE FEDERALIST No. 51 (James Madison), reprintedin 2 DEBATES, supra note 26, at 164. 62 Youngstown Sheet & Tube Co., 343 U.S. at 635 (Jackson, J., concurring). 63 See, e.g., Reply to Wilson's Speech: "Centinel" [Samuel Bryan] 11 (1787), in 1 DEBATES, supra note 26, at 77, 87; Reply to Wilson's Speech: "Cincinnatus"[Arthur Lee] V (1787), in 1 DEBATES, supra note 26, at 114, 117; Joseph Spencer to James Madison, Enclosing John Leland's Objections (1788), in 2 DEBATES, supra note 26, at 267, 269.

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Government from one another would preclude the establishment of a Nation capable of governing itself effectively.64 Out of the theory of separation comes the principle of nondelegation. Congress may not delegate its legislative power to the President, not only to prevent tyranny, but also to hold Congress accountable. 65 "Unchecked delegation would undercut the legislature's accountability to the electorate and subject people to rule through ad hoc 66 If commands rather than democratically considered general laws." Congress could delegate its legislative power to the executive, people could not find out easily who is responsible for legislation they disagree with or wish to change. 67 The non-delegation principle holds even though Congress presumably waives it voluntarily. This is because "the concept of congressional waiver ignores the fact that separation of powers protections were not inserted to protect the other branches, but rather to protect the populace."68 So, not only is separation of powers designed to be a preventive measure against tyranny; it is also supposed to enhance 69 the working of democracy. Separation of powers is clearly an important institutional tool, and as the Court has pointed out, "To preserve those checks, and maintain the separation of powers, the carefully defined limits on the power of 70 each Branch must not be eroded." The only questions remaining are: how are the lines between the branches drawn, and who is to draw them? The first question is beyond this paper's scope, and so it is minimally addressed. Traditionally, promulgation of laws is generally considered a legislative function, while their execution is considered an executive function, and interpretation of those laws in the context of a particular dispute is a judicial function. Defining which is which on some 71 occasions is a difficult task, as even James Madison admitted. No Buckley v. Valeo, 424 U.S. 1, 121 (1976). Field v. Clark, 143 U.S. 649, 692 (1892). 66 David Schoenbrod, The Delegation Doctrine: Could the Court Give it Substance?, 83 MICH. L. REV. 1223, 1224 (1985). 67 Id. at 1244-45. 68 Redish & Cisar, supra note 29, at 487. This point is similar to one we shall see later concerning federalism. Structural principles, just like the Bill of Rights, are first and foremost intended as protections for the people, not the government. 69 Justice Kennedy puts it pointedly: "Abdication of responsibility is not part of the constitutional design." Clinton v. City of New York, 524 U.S. 417, 452 (1998) (Kennedy, J., concurring). For a work expounding on the value of the separation of powers as a bulwark of liberty, see Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. PA. L. REV. 1513 (1991). 70 INS v. Chadha, 462 U.S. 919, 957-58 (1983). 71 James Madison to Thomas Jefferson (Oct. 24, 1787), reprinted in 1 DEBATES, supra note 26, at 192, 198. "Even the boundaries between the Executive, Legislative & Judiciary powers, though in general so strongly marked in themselves, consist in many instances of mere shades of difference." Id. 64

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matter how they are defined in detail, because the Constitution explicitly states that the federal government only possesses those powers delegated to it (through written enumeration), "the separation of powers provisions clearly impose an absolute, rather than a conditional, 72 standard of implementation." Tied closely to the necessity of an absolute standard is the answer to the second question: who draws the lines distinguishing power between the branches? This question dovetails directly with the themes of this paper. Two requirements are necessary to have a vigorous separation of powers doctrine: absolute standards and an independent judiciary. 73 The Founders believed that the courts would be a necessary part of separation enforcement. As mentioned above, checks and balances were a key ingredient to the Founders' version of separation of powers. Judicial review was one of those checks. Alexander Hamilton referred to the courts as "bulwarks of a limited constitution against legislative encroachments." 4 The Founders believed that "the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority." 75 Part of that protection includes holding fast to the separation of powers principle. This is one of the several reasons that the Constitution provides for an independent judiciary: an independent arbiter is needed to settle disputes of power between the executive and legislative branches. To have Congress decide for itself what powers it can delegate would violate the founding principle, discussed in Part A, that no one is to be the judge in his own case; the conflict of interest for Congress is obvious. 76 Conversely, leaving the decision to the President feeds the natural desire for power that the Founders sought so far as possible to squelch. Dividing the powers of government seems almost second nature to us, since it has been practiced for so long. At the Constitution's inception, it was considered a relatively new, scientific advance in the

72 Redish & Cisar, supra note 29, at 503. For a work attempting to give an answer on how to define the powers along this line, see Schoenbrod, supra note 67 (offering a complex theory for the Court in attempting to enforce the delegation doctrine to replace the unworkable "intelligible principle" rule, and giving several reasons why it should do so. He argues for a qualitative test for proper delegation of power by Congress to the Executive, as opposed to a quantitative one). 73 Redish & Cisar, supra note 29, at 458. 74 THE FEDERALIST No. 78 (Alexander Hamilton), reprinted in 2 DEBATES, supra note 26, at 471-72. 75 Id. at 470. 76 Redish & Cisar, supra note 30, at 498.

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practice of government. 77 It was deemed so important to the creation of the new government that the writers of the Constitution deliberately placed the powers of each branch of government in three separate articles of the document, to emphasize their distinct natures and unique responsibilities. Yet, separation for its own sake was not the goal, as we have seen with the simultaneous creation of the system of checks and balances. Protection of liberty, within a working system of government, was the goal. That is still the goal and the reason why judicial activism is necessary in this area. The judiciary fulfills its duty in the separation scheme, enforces congressional accountability, and protects the people as 78 a whole when it enforces a strict separation of powers doctrine. 2. Federalism On the subject of federalism, John Marshall stated that "[iun America, the powers of sovereignty are divided between the government of the Union, and those of the states. They are each sovereign, with respect to the objects committed to it, and neither is sovereign with respect to the objects committed to the other."79 Put simply, "our Constitution establishes a system of dual sovereignty between the states and the Federal Government."80 This design was nothing short of revolutionary, and, perhaps, not so simple. It was a common maxim of politics before the Constitution that two sovereign entities could not exist within the same boundaries. Anti-Federalists, such as Thomas Tredwell, pointed this out consistently as a flaw in the new governmental system. "The idea of two distinct sovereigns in the same country, separately possessed of sovereign and supreme power, in the same matters at the same time, is as supreme an absurdity, as that two distinct separate circles can be bounded exactly by the same circumference." 8' The idea understandably confused them, and even confused some of the Constitution's supporters.8 2 This confusion led to 77 "The chief improvement in government, in modern times, has been the compleat [sic] separation of the great distinctions of power. . . ."Reply to Wilson's Speech: "Centinel" [Samuel Bryan] 11 (1787), reprintedin 1 DEBATES, supra note 26, at 77, 87. 78 Schoenbrod, supra note 67, at 1278. The Court is not the only check in the separation scheme, obviously, but it plays a pivotal role. 79 McCulloch v. Maryland, 17 U.S. 316, 410 (1819). 80 Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). 81 1 THE DEBATES, RESOLUTIONS, AND OTHER PROCEEDINGS, IN CONVENTION, ON THE ADOPTION OF THE FEDERAL CONSTITUTION 6 (Jonathan Elliot ed., Washington 1827). 82 "Can the sovereignty of each state in all its parts exist, if there be a sovereignty

over the whole[?] Is it not nonsense in terms, to suppose an united government of any kind, over 13 co-existent sovereignties?" Rebuttal to "An Officer of the Late ContinentalArmy": "Plain Truth", INDEPENDENT GAZETTEER (Philadelphia), Nov. 10, 1787, reprinted in 1 DEBATES, supra note 26, at 105-06. Historian Forrest McDonald has observed, "[The Founders] introduced an entirely new concept into the discourse, that of federalism, and in

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repeated attacks that the Constitution would destroy the sovereignty of the states. 83 The Founders, just as repeatedly, denied these claims. "The proposed Constitution, so far from implying an abolition of the State Governments, makes them constituent parts of the national sovereignty by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power."84 Given the controversy, "[ilt would be in vain to deny the possibility of a clashing and collision between the measures of the two governments."85 Accordingly, Justice O'Connor proclaimed that "discerning the proper division of authority between the Federal 86 Government and the States" is a question "as old as the Constitution." This old question arises because the principle of federalism, that different levels of government possess authority in different areas, is not textually stated in the Constitution. The reason the Supreme Court accepts it as a "fundamental principle" is that federalism is fairly easily implied in the Constitution. 87 The Tenth Amendment all but states the principle in black and white: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."85 However, recall that many Founders felt the Bill of Rights originally unnecessary particularly in this area. James Madison cited the principle of enumeration, flowing from a written constitution, as proof of the matter. "The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite."8 9 This fact, a written constitution, testifies to the existing sovereignty of the states.

the doing, created a novas ordo seclorum: a new order of the ages." Forrest McDonald, Novus ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE CONSTITUTION, 261 (1985). 83

"[I] repeat, that the proposed constitution must eventually annihilate the

independant [sic] sovereignty of the several states." "The Defect is in the System Itself: Robert Whitehill on the Dangers of the Powers of Congress and the Illogic of the Habeas Corpus Clause, reprintedin 1 DEBATES, supra note 26, at 811. 84 THE FEDERALIST No. 9 (Alexander Hamilton), reprinted in 1 DEBATES, supra note 26, at 344. It will be noticed that half of the argument Hamilton gives here for state sovereignty, i.e., the election of Senators to Congress by state legislatures, no longer exists because of the Seventeenth Amendment. This structural change will play a part in some observations later in the paper. 85 Gibbons v. Ogden, 22 U.S. 1, 238 (1824) (Johnson, J., concurring). 86 New York v. United States, 505 U.S. 144, 149 (1992). 87 Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). 88 U.S. CONST. amend. X.

89 THE FEDERALIST No. 45 (James Madison), reprintedin 2 DEBATES, supra note 26, at 105. Alexander Hamilton expressed a similar sentiment, believing that "the State Governments would clearly retain all the rights of sovereignty which they before had and

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One statement in the text, however, arguably changes everything: the Supremacy Clause. 90 Several view this clause as the proverbial "trump card" in federalism issues. 91 That was certainly the feeling of many opposed to the proposed Constitution. The dissenters in the Pennsylvania ratifying convention, listing their reasons for voting in the negative, stated that: two co-ordinate sovereignties would be a solecism in politics... one or the other would necessarily triumph in the fullness of dominion. However, the contest could not be of long continuance, as the state governments are divested of every means of defence, and will be 92

obliged by "the supreme law of the land" to yield at discretion.

That threat of Federal dominance, however, remained relatively benign for about seventy-five years, as the Supreme Court policed the boundaries between state and federal power with a careful eye. 93 Then something happened which changed the federal-state structure dramatically: the Civil War. "[Hlistorical federalism has been repealed by history. Much of that repeal occurred at the time of the Civil War when the Thirteenth and Fourteenth Amendments to the Constitution were passed, conferring broad new powers on the federal government."9 The Court did not take broad practical notice of this until the 1930s. Beginning in the 1930s, however, and with accelerating speed after 1937, the Supreme Court began to abandon its textually implied role of playing jurisdictional policeman in order to take up a new antitextual role as a nationalist rights-creating body. The structural constitutionalism of the written text fell by the wayside ....

Some believe that this change announced the death of federalism in America.9 6 Today's Supreme Court apparently does not agree. Justice O'Connor referred to our system as one of "dual sovereignty" in an opinion for the Court in 199197 and quoted at length some very strong which were not by that act exclusively delegated to the United States." THE FEDERALIST No. 32 (Alexander Hamilton), reprintedin 1 DEBATES, supra note 26, at 678. 90 "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.. . ." U.S. CONST. art. VI, cl. 2. 91 Dissent of the Minority of the Pennsylvania Convention, PENNSYLVANIA PACKET (Philadelphia), Dec. 18, 1787, reprintedin 1 DEBATES, supra note 26, at 538. 92 Id. 93 Calabresi, supra note 21, at 1377. 94 Richard Neely, Mother, God, and Federalism, in DERAILING THE CONSTITUTION, supra note 55, at 89-90; see also Yoo, supra note 46, at 59 n.10. 95 Calabresi, supra note 21, at 1377. 96 Neely, supra note 94, at 90 ("When today's political science professors point out that the federal government is a government of'delegated' powers, we all chuckle because by common consent state power has become more a matter of administrative convenience than an element of sovereignty."). 97 Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).

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states-rights language from an 1869 Supreme Court decision. 98 While this may indeed represent more lip-service than reality to the federalism situation today, the Court has backed these strong words with several federalism-premised decisions. 99 So it seems that federalism's funeral was premature, and it behooves us to notice why this structural provision has been so resilient a constitutional player. The chief danger the Founders sought to guard against was a concentration of political power. In a republic, this could happen just as easily through a tyranny of the majority as a tyranny of one branch of government. One charge against the proposed Constitution, and one of the known political axioms of the time, was that for a republic to function, it must be small in geographic size, because the representatives of the government must be capable of gauging the needs and desires of the people.10 0 The larger the sphere being governed, the more difficult this becomes. James Madison and the other Founders turned this axiom on its head, claiming that "the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self government."10 1 Madison explained that to secure the public good and private rights from the dangers of factions (i.e. special interests) ruling in government, it was necessary to leixtend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exits, it will be more difficult for all who feel 0it2 to discover their own strength, and to act in unison with each other.

Id. (quoting Texas v. White, 74 U.S. (7 Wall.) 700, 725 (1868)). Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National Government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States. 98

Id. 99 See Printz v. United States, 521 U.S. 898 (1997) (holding that Congress cannot commandeer state executive officials to carry out federal programs, without the officials' consents); United States v. Lopez, 514 U.S. 549 (1995) (holding that the "Gun Free School Zone Act" exceeded congressional authority to regulate interstate commerce); New York v. United States, 505 U.S. 144 (1992) (holding generally that the Constitution does not authorize Congress to commandeer state legislatures to legislate for them). 100 THE FEDERALIST No. 51 (James Madison), reprinted in 2 DEBATES, supra note 26, at 167-68. 101 Id. at 168. 102 THE FEDERALIST No. 10 (James Madison), reprinted in 1 DEBATES, supra note 26, at 410.

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Moreover, not only does federalism diminish the likelihood of a tyranny by the people; as Hamilton explained, it also discourages tyranny by government. This balance between the national and the state governments ought to be dwelt on with peculiar attention, as it is of the utmost importance.-It forms a double security to the people. If one encroaches on their rights, they will find a powerful protection in the other.-Indeed they will both be prevented from overpassing their constitutional limits, by a certain rivalship, which will ever subsist 103 between them. Federalism thus protects the liberty of the people from their governments by having two of them, and it protects liberty from factions of people by extending the sphere that a faction must control before it becomes potent. This is why Madison believed that in "the extent and proper structure of the Union, therefore, we behold a Republican remedy for the diseases most incident to Republican Government." 1o4 The chance for a successful republic hinges heavily on proper structure. The Court has invalidated statutes commandeering state officials because skirting the structure of federalism diminishes the accountability of Congress and of state officials. "Accountability is thus diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not pre-empted by federal regulation." 1 5 Both parties can "pass the buck:" Congress by having state officials implement unpopular programs, keeping congressmen "insulated from the electoral ramifications of their decision;" 10 6 and state officials by blaming Congress for passage of unpopular legislation. The people thereby have difficulty holding the responsible party accountable, defeating the purpose of a republic.10 7 A strict adherence to federalism prevents this occurrence. "American federalism in the end is not a trivial matter or a quaint historical anachronism. American-style federalism is a thriving and vital institutional arrangement." 10 8 As the Supreme Court has explained, Melancton Smith and Alexander Hamilton Debate Representation, Aristocracy, and Interests (1788), reprintedin 2 DEBATES, supra note 26, at 772. 104 THE FEDERALIST No. 10 (James Madison), reprintedin 1 DEBATES, supra note 26, at 411. 105 New York v. United States, 505 U.S. 144, 169 (1992). 106 Id. 103

107 See United States v. Lopez, 514 U.S. 549, 576-77 (1995).

Id.

If, as Madison expected, the Federal and State Governments are to control each other ... and hold each other in check by competing for the affections of the people ... those citizens must have some means of knowing which of the two governments to hold accountable for the failure to perform a given function. 108 Calabresi, supra note 5, at 770.

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[Federalism] assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society; it increases opportunity for citizen involvement in democratic process; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry. 10 9 Most importantly, as the Founders emphasized, federalism serves as a check on the abuse of government power, helping achieve the Constitution's main goal. 110 The only question remaining is who polices the boundaries between the federal and state governments? The necessity of a policeman seems obvious. "If this 'double security' [of federalism] is to be effective, there must be a proper balance between the States and the Federal Government. These twin powers will act as mutual restraints only if both are credible. In the tension between federal and state power lies the promise of liberty.""' Once again the first principles discussed in PartA come into play. Since our written Constitution implies the federalist system, and because a State or Federal legislative branch deciding who controls what violates the rule that no man should be a judge in his own case, an impartial arbiter is needed to canvass the structure of the Great Text and decide these issues. If Congress called the shots, it would clearly be able to all but destroy the states, given the existence of the Supremacy Clause. If the State legislatures called the shots, the Federal government would become impotent, as was the case under the Articles of Confederation. The impartiality of the judiciary again plays a vital role. Some believe that federal courts will not be impartial in reality, because when 112 The force of this they expand Congress' power, they expand their own. argument is difficult to deny. However, "When we talk about the institutional competence of either the Court or Congress [or any body for that matter], we must remember that we are talking about an 'as A perfect, reliable institutional actor compared to what' question .... does not exist."113 Congress is the institution best suited to policy-making 109 Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).

110 Id. S11Id. at 459. Brutus, an arch Anti-Federalist, predicted as much: Every body of men invested with office are tenacious of power.., the same principle will influence them [the judiciary] to extend their power, and increase their rights; this of it itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority." Brutus X/, N.Y. J., Jan. 31, 1788, reprinted in 2 DEBATES, supra note 26, at 129, 134. 113 Lillian R. BeVier, Religion in Congress and the Courts: Issues of Institutional Competence, 22 HARV. J.L. & PUB. POL'Y 59, 62-63 (1998). 112

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because it takes the widest range of views into consideration, it can act prophylactically, and it allows for broad public debate. It is not the perfect institution of law-making, but it is the best our experience has enabled us to produce. The same argument applies to the judiciary in deciding federalism questions. An impartial actor familiar with the system of the Founders is necessary to make these decisions. Is the Court ideally impartial for the task? It probably is not, but it is the best institutional actor we have for the task. It only makes sense that "continuing vigilance of the courts in protecting states' rights is of critical importance if the state-federal balance of power so necessary to n4 the preservation of our liberty is to be maintained." C. Separationof Powers and Federalism:A Seamless Web Examined individually, separation of powers and federalism are both important concepts in our constitutional scheme. Yet, we only studied them in this manner for ease of examination. In reality, the two are anything but separate. "[The Framers] used the principles of separation of powers and federalism to secure liberty in the fundamental political sense of the term, quite in addition to the idea of freedom from intrusive governmental acts." 115 In fact, federalism can be seen as part of the system of separation of powers because it separates power vertically, where division of power among the branches separates it horizontally. As Madison himself indicates, In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will controul each other; at the 116 same time that each will be controuled by itself. Sometimes, when faced with attacks on their model of federalism, the Founders responded by pointing to the separation of powers as an additional bulwark for preserving federalism.117 In New York v. United States,118 a federalism case, the Court cites two separation of powers 114 John C. Yoo, Judicial Review and Federalism, 22 HARV. J.L. & PUB. POLY 197 (1998). When I say "courts," in this case I refer to those both at the state and federal levels. Both exist to protect rights, thus both also exist to secure structure. 115 Clinton v. City of New York, 524 U.S. 417, 452 (1998) (Kennedy, J., concurring). 116 THE FEDERALIST No. 51 (James Madison), in 2 DEBATES, supra note 26, at 166. The reader will note the stark similarity between this point and the one made by Hamilton found in the text at note 104. The repetition is no accident, because the scheme of government was no accident. Creating "double securities" for the people against tyranny from any quadrant constantly consumed the designs of the Founders. 117 Yoo, supra note 46, at 1384-85. 118 New York v. United States, 505 U.S. 144 (1992).

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cases, Buckley v. Valeo"1 9 and INS v. Chadha,120 to make its point concerning the consent of state officials to congressional actions. "The constitutional authority of Congress cannot be expanded by the 'consent' of the governmental unit whose domain is thereby narrowed, whether 121 All of this that unit is the Executive Branch or the States." demonstrates that federalism and separation of powers are inextricably linked together. "Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the 122 A dedication to one risk of tyranny and abuse from either front." requires dedication to the other, and more important for our purposes, judicial cognizance of one demands that both be upheld to insure that the Constitution's framework is implemented in an accurate and responsible fashion. III. JUDICIAL REVIEW AND THE STRUCTURAL CONSTITUTION So far, we have looked at the immense importance of the Constitution's structures for the proper working of government and protection of the people. For this article's purpose, that is only half the story. Judicial review, the greatest countermajoritarian structure in the whole constitutional scheme must be examined in detail to see when its exercise is justified. The dogmatic Anti-Federalist, Brutus, describing the Supreme Court, said: It is, moreover, of great importance, to examine with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and their salaries. No errors they commit can be corrected by any power above removed from office them, if any such power there be, nor can they be 123 for making ever so many erroneous adjudications. Brutus may be guilty of some hyperbole, but makes a sound point: no other judicial body in the world had the power that is invested in the Supreme Court through the Constitution. Once again, the Founders turned political theory on its head; the common wisdom was that the people always knew best and ought not be questioned. The Founders 119 Buckley v. Valeo, 424 U.S. 1 (1976). 120 INS v. Chadha, 462 U.S. 919 (1983). 121 New York, 505 U.S. at 182. 122 Gregory v. Ashcroft, 501 U.S. 452, 458 (1991). 123 "Brutus"XI, N.Y. J., Jan. 31, 1788, reprintedin 2 DEBATES, supra note 26, at 129, 129. We shall visit with Brutus a few more times before the end of this section because his observations prove telling, even if exaggerated.

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agreed with this to a great extent, but not in its entirety. They believed that certain principles of the government needed firmer grounding than a simple reliance on the passions of the people. This belief sprang from the principle discussed in Section II, PartA, that people were fallible and often succumbed to their darker passions. The Founders maintained that "it is the reason of the public alone that ought to controul and regulate the government. The passions ought to be controuled and regulated by 124 the government." This was one reason for a written constitution that was difficult to amend: people's darker passions must be kept from changing the Constitution each time something excited them. Our written Constitution intentionally placed certain principles beyond the ordinary reach of the people. After all, the point of a written constitution is diminished, if not obliterated, if it is constantly changed. 125 The Constitution was not intended to be entirely democratic. 126 Controlling the public's passions was also a reason behind creating an independent judicial branch with appointments that last during good behavior and untouchable salaries for the judges. The Founders wanted a branch that would handle constitutional questions in a dispassionate and reasoned way, one that would not be afraid of challenging the will of the people when extraordinary circumstances called for it. The Articles of Confederation did not provide for a judicial branch, so no venue existed to settle federal questions. No constitutional challenge to legislation could be made at the federal level. The Founders attempted to remedy these things through the creation of a body with an unprecedented power: judicial review. There is doubt, but not an immense amount of it, that the Founders intended judicial review to exist. Alexander Hamilton observes in Federalist 78, "[ln a government in which [the different departmentsl are separated from each other, the judiciary, from the nature of its functions will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them."'127 People may chuckle when they read this, assuming that Hamilton must not have taken into account, or conceived of, the power of judicial review when he wrote this now famous text. The facts are the opposite. In the same paper, Hamilton expressed the first rationale for 124 THE FEDERALIST No. 49 (James Madison), reprintedin 2 DEBATES, supra note 26, at 146.

Just look at France, with its experience of the Revolution of 1789 and the ensuing Terror of 1793-1794. 125

J. Clifford Wallace, The Jurisprudenceof Judicial Restraint: A Return to the Moorings, 50 GEO. WASH. L. REV. 1, 2 (1981). 127 THE FEDERALIST, No. 78 (Alexander Hamilton), reprinted in 2 DEBATES, supra 126

note 26, at 468.

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judicial review, one that John Marshall would copy later in his Marbury v. Madison 128 opinion. The complete independence of the courts of justice is peculiarly essential in a limited constitution ....

Limitations of this kind can be

preserved in practice no other way than through the medium of the all acts contrary to courts of justice; whose duty it must be to declare 29 the manifest tenor of the constitution void. 1 The argument for judicial review given here is purely structural: judicial review exists because of the fact of a written constitution and the need to keep a limited government within its proscribed boundaries. Hamilton carries the structural importance of the judiciary even further. "[Tihe courts," Hamilton says, "were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority."130 Hamilton was not the only Founder to explicitly argue for judicial review, 131 and each made the appeal on structural and institutional grounds, taking care to emphasize the independence of the judiciary. Brutus also predicted the existence of judicial review, but, unlike his adversaries, he did not look upon the innovation as a cause for celebration. He charged that in their decisions [the Supreme Court] will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution ....

This

128 Marbury v. Madison, 5 U.S. 137 (1803). 129 THE FEDERALIST No. 78 (James Madison), reprintedin 2 DEBATES, supra note 26, at 469. 130 Id. at 470. 131 James Wilson, second only to Madison in influence on the crafting of the Constitution, and later a justice of the Supreme Court, remarked in the Pennsylvania ratifying convention that "when [congressional legislation] comes to be discussed, before the judges-when they consider its principles, and find it to be incompatible with the superior power of the constitution, it is their duty to pronounce it void." James Wilson Replies to Findley (1787), reprinted in 1 DEBATES, supra note 26, at 820, 823. Oliver Ellsworth, a staunch Federalist and later Chief Justice of the Supreme Court for four years, described his view of the courts under the proposed constitution in the Connecticut ratifying convention: This constitution defines the extent of the powers of the general government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the constitution does not authorise, it is void; and the judicial power, the national judges, who to secure their impartiality are made independent, will declare it void. Oliver Ellsworth Defends the Taxing Power and Comments on Dual Sovereignties and Judicial Review (1788), reprinted in 1 DEBATES, supra note 26, at 887, 883; see also, "Americanus"[John Stevens, Jr.] VII, DAILY ADVERTISER (N.Y.), (Jan. 21, 1788), reprinted in 2 DEBATES, supra note 26, at 60.

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power in the judicial, will enable them to mould the government, into 132 almost any shape they please. Though some may think that this is exactly what happened, and there is ample cause to think as such, it is not what the Founders intended. "In its inception, judicial review was a limited and legalistic concept, a product of logic designed to serve a carefully defined purpose." 133 The "legalistic concept" was for the Court to serve as one of the checks on the other branches powers. As Hamilton responded to the charge, The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequences would equally be the substitution of their pleasure to that of the legislative body. The observation, if it proved any thing, would 1prove 34 that there ought be no judges distinct from that body [Congress]. Forming a government without a judiciary had already been tried under the Articles of Confederation, an abysmal failure, and so the Founders (and even more importantly the People, who ratified the Constitution) were not about to make the same mistake twice. Hamilton and other supporters of the Constitution truly believed that the judiciary would possess "neither Force nor Will, but merely judgment; and must ultimately depend on the aid of the executive arm even for the efficacy of its judgments." 135 In other words, the powers vested in the judiciary were the least susceptible to despotism, because the courts could do little or nothing without the acquiescence of at least one of the other two branches to carry out their decisions. Regardless of what the Founders intended, because of the absence of an explicit rendering in the text and its ostensible operation as an antidemocratic device, judicial review is "a deviant institution in the American democracy." 136 Judicial review is not celebrated (outside 132 "Brutus"XI, N.Y. J. (Jan. 31, 1788), reprinted in 2 DEBATES, supra note 26, at 129, 132, 135. 133 EATON, supra note 9, at 13. 134 THE FEDERALIST No. 78 (James Madison), reprintedin 2 DEBATES, supra note 26, at 471. 135 Id. at 468. Hamilton's point is buttressed by the findings of Forrest McDonald, who writes: The delegates devoted less time to forming the judiciary-and less attention to careful craftsmanship-than they had expended on the legislative and executive branches. In part the judiciary received minimal consideration because it was regarded as the least powerful and least active branch of government. In part, too . . . the delegates were in general agreement as to the principles that should be embodied in forming it. MCDONALD, supra note 82, at 253. 136 ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT

AT THE BAR OF POLITICS 18 (1962). It should be noted that not everyone agrees that the Court, properly understood, is a countermajoritarian device. It can be argued that when

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narrow legal circles) for its wonderful contributions to the American political system. "The root difficulty is that judicial review is a countermajoritarian force in our system." 137 This observation by the late Professor Alexander Bickel is the chief criticism of judicial review in general and judicial activism in particular. The "counter-majoritarian difficulty" 138 is that, in general, decisions in our society are supposed to be made by the elective branches of our government. When a judge declares an act of Congress or the President void, he short-circuits the democratic process, and at the Supreme Court level, places the issue out of the reach of ordinary debate. 139 This practice can damage the very system it is designed to maintain, namely rule by the People through a government of laws. 140 Judge Bork presents the problem in a slightly different way: The central problem for constitutional courts is the resolution of the "Madisonian Dilemma." The United States was founded as a Madisonian system, which means that it contains two opposing principles that must be continually reconciled. The first principle is self-government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities. The second is that there are nonetheless some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule. The dilemma is that neither majorities nor minorities can be trusted to define the proper spheres of democratic authority and individual liberty. To place that power in one or the other would risk either tyranny by the majority or tyranny by the 4 minority.' '

the Court strikes down a law as void against the Constitution, it is simply finding in favor of the supermajority that approves of the Constitution. 137 Id. at 16. 138

Id.

139 Overturning a decision by the Supreme Court requires either an Amendment to the Constitution or a changing of the guard on the Bench, neither of which happens easily

or often. 140 The great constitutional scholar James Bradley Thayer puts it thus: It should be remembered that the exercise of [the power ofjudicial review], even when unavoidable, is always attended with a serious evil, namely that the correction of legislative mistakes comes from the outside, and the people lose the political experience, and the moral education and stimulus that comes from fighting the question out in the ordinary way, and correcting their own errors. The tendency of a common and easy resort to this great function.., is to dwarf the political capacity of the people, and to deaden its sense of moral responsibility. THAYER, JOHN MARSHALL 106-07 (1920). 141 ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 139 (1990).

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Bork's analysis leaves something to be desired, 142 but the major point survives: how do we adhere to rule by the People while maintaining the supremacy of the law of the Constitution? Maintaining constitutional supremacy is, after all, the chief purpose of judicial review; the government must be kept within its constituted bounds to insure that the system works properly and that the people's rights are protected. This dilemma/difficulty is chiefly solved through structural judicial activism. 143 This type of activism promotes majorities, judicial selfrestraint, and fidelity to the Constitution. The way that structural activism promotes majorities is simply through the design of the system. In federalism cases, such a judiciary chooses which majority should govern as between national majorities and state majorities .... In separation of powers cases, the federal judiciary chooses which majority should govern as between the national majority which elects the President every four years through the medium of the Electoral College and the very different national majority which selects the year cycle in races that go on district by district Congress over a six 144 and state by state. In essence, where structural cases are concerned, the countermajoritarian difficulty is mitigated, if not completely resolved, because the judiciary is not choosing between a majority and a minority per se. It is choosing between two different types of majorities within our system. Both state majorities and national majorities exist in our federalist system; likewise, congressional majorities and presidential majorities exist in our separation of powers scheme. 145 Choosing one or the other is not an intolerable subversion of our system; it is precisely the way the system was intended to work, provided the Court's decision is based upon fidelity to the Constitution. Thus, structural activism singularly limits problems arising from the counter-majoritarian difficulty. Structural activism also promotes judicial self-restraint. Judicial restraint means that to avoid "usurping the policymaking role of the democratically elected bodies and officials, a judge should always be 142 Bork overemphasizes both the influence of Madison in creating the system and the amount of tension that actually exists in our system. Moreover, the reason we do not allow majorities to decide everything is not simply because of a fear of tyranny of the minority or majority. It is also because the nature of humanity is such that the people may not always be vigilant in protecting their freedoms. Thus, some structures are necessary to supplement the people's vigilance; this protection is part of the system as well. For a telling but not wholly accurate critique of Bork, see Jaffa, supra note 2, at 291. 143 It will never fully be solved: that is the nature of the imperfect institutions we must live with; see supra note 113 and surrounding text. 144 Calabresi, supra note 21, at 1383. 145 This explains why we end up with "split tickets" many times at the national level, with Congress being held by one political party, and the other party holding the Presidency.

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146 hesitant to declare statues or governmental actions unconstitutional." Restraint is a beneficial trait in our judicial system because it "preserves fundamental constitutional precepts. It encourages the separation of powers, protects our democratic processes, and preserves our fundamental rights." 147 It does these things by keeping judicial hands out of the "cookie jar" of policymaking. Courts are ill-equipped to make policy for several reasons, ranging from a lack of necessary information to an inability to change its decisions in a timely fashion. 148 More pointedly, the Founders already argued about whether the Supreme Court should have a role in policymaking. At the Convention, some proposed a "Council of Revision" for legislative purposes, which would have consisted of the President, some of his Cabinet, and the Supreme Court, reviewing congressional legislation on policy grounds. The idea was rejected soundly. 149 The system kept policymaking out of the courts' hands. Given these things, the courts need to practice judicial restraint much of the time - the system assumes as much through the separation of powers, as the statements of Hamilton and others indicate. 150 Self-restraint is the only real check on the judiciary, given its independent nature. 151 As the twelfth Chief Justice of the Supreme Court, Harlan Fiske Stone said, "While the unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, 152 the only check upon our own exercise of power is our own sense of self-restraint." 153 Since this is the case, and given the precarious role judicial review holds in our system, it makes sense that an active judiciary should have a proper place only on rare occasions. When the Court acts on structural bases, it is practicing restraint in the sense that it is not imputing its own preferences over those of the People; rather it is placing constitutional constraints over the preferences of the particular majoritarian institution that committed the voided act.

146

Wallace, supra note 127, at 8.

147 Id. at 16.

at 6. These are some of the very reasons that Congress is responsible for policymaking in the first place. See also, Edwin Meese III, Putting the Federal Judiciary Back on the Constitutional Track, 14 GA. ST. U. L. REV. 781, 784 (1998). 149 MCDONALD, supra note 82, at 242. 150 Wallace, supra note 127, at 8 ("The constitutional trade-off for independence is that judges must restrain themselves from the areas reserved to the otherf separate branches."). 151 Senator Charles E. Grassley, Foreword to EATON, supra note 9, at xiv. It is true that judges can be impeached, but this occurs so little as to be almost no check at all. There are also the structural checks of the "case and controversy" and standing requirements, but history has shown that these can be easily manipulated by judges with little self-restraint. 152 And electoral restraint. 153 United States v. Butler, 297 U.S. 1, 78-79 (1936) (Stone, J., dissenting). 148

Id.

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This is not a conventional way of looking at restraint versus activism. Judge Justice' 54 provides the traditional view of the legal establishment: "Proponents of judicial self-restraint can also be defined in contrast to those jurists and scholars who view the court as the legitimate counter-majoritarian force in our democracy." 15 Judge Justice's view is precisely the kind of categorization I wish to refute. Believing that judicial review (of a certain kind) and self-restraint are at odds is an incorrect juxtaposition. A judge who believes in structural judicial activism still follows the standards of proper statutory interpretation. The structural activist "respects the process of democratic decisionmaking embodied in legislative enactments," 156 takes care not to embroil himself "unnecessarily in the turbulent waters of political controversy," 157 and practices what Charles Lamb calls the "maxims of restraint." 158 The structural activist does these things because, above all, the judge respects the principles upon which the Constitution is founded and the People for whom he adjudicates. For structural activists, several laws that they consider unwise or downright stupid will nonetheless be upheld as constitutional. 5 9 "We begin, of course, with the presumption that the challenged statute is valid. Its wisdom is not the concern of the courts; if a challenged action does not violate the Constitution, it must be sustained." 160 The concern is not the substantive wisdom of the legislation, but the structural impact of its provisions. Ultimately, the main concern of judicial activism should be fidelity to the Constitution, because judicial review is a legal tool so fraught with dangers in our tradition that it ought to be used in only the most justifiable, least dangerous way. "The process is justified only if it is as

deliberate and conscious as men can make

it."161

Structural activism is

preferable because it comports best with the text and history of the Constitution. It is the least dangerous because it simply rules in favor of one majority over another, thus lessening the criticism of judicial review's counter-majoritarian nature. More importantly, structural activism finds its decisions in the foundation of the Constitution, rather 154See supra notes 16 and 17 and accompanying text. 155 William Wayne Justice, The New Awakening: JudicialActivism in a Conservative Age, 43 Sw. L.J. 657, 671 (1989). 156 Anderson, supra note 3, at 1561. 157 ARCHIBALD

Cox,

THE ROLE OF THE SUPREME COURT IN AMERICAN GOVERNMENT

28(1976). 158 Anderson, supra note 3, at 1560. 159 Baker v. Carr, 369 U.S. 186, 270 (1962) (Frankfurter, J., dissenting) ("[Tihere is not under our Constitution a judicial remedy for every political mischief, for every undesirable exercise of legislative power. The Framers carefully and with deliberate forethought refused to so enthrone the judiciary."). 160 INS v. Chadha, 462 U.S. 919, 944 (1983). 161 BICKEL, supra note 137, at 96.

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than the ideas of the judge. With the practice of improper judicial activism, the Constitution becomes "an authoritative occasion for, rather than a norm of, judicial interpretation." 162 Proper judicial activism aims for the latter course. It recognizes that "the Constitution is form; an appeal to 'function' is a claim that something else would be better than the Constitution, which may be true but nevertheless isn't an admissible argument about interpretation of the structure we have." 163 This formalism makes structural activism more conducive to drawing bright lines. There are three general arguments for judicial activism: (a) personal preferences; (b) natural or higher law; and (c) the nature of the regime (also known as the argument from democracy or republic). As we have seen, some judges, such as William Justice or Skelly Wright believe in the first justification, one that this article rejects as improper judicial activism. The second finds its grounding in "a belief in natural law," a sense judges have been appealing to ever since Calder v. Bull.16 The third argument rests its force on the Constitution itself, on the concept that "American democracy is not simply majority rule; rather, it is a constitutional democracy. The majority rules within the bounds of the Constitution, and the limits of the Constitution only have meaning if there is somebody there to enforce those limits."165 The difficulty among these arguments arises when attempting to tell the difference between when a judge is relying on personal preferences, which is not justified, and when he is relying on natural or higher law, which is more justified. The line is so precarious as to be almost indiscernible. 166 Given this tendency of judicial review, the only safe course is the one that is clearly the most justified: the argument from structure. Since judicial review carries with it this inherent problem, it makes sense to concentrate on the cases that present the proper role of the judiciary as jurisdictional policemen. The sense of structural judicial activism rests, as I have said, on the precarious nature of judicial review as a legal device. Thus, the power of the Court is premised on the legitimacy of judicial review. "Lacking power of the purse or the sword, the Court must rely upon the power of legitimacy - upon the capacity to evoke uncoerced assent and strong

162 Russell Hittinger, A Crisis of Legitimacy, in THE END OF DEMOCRACY? THE JUDICIAL USURPATION OF POLITICS 18 (1997). 163 Easterbrook, supra note 23, at 15. 164 Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). 165

Chemerinsky, supra note 8, at 30.

166 Justice Iredell observed in Calder, "The ideas of natural justice are regulated by

no fixed standard: the ablest and the purest men have differed upon the subject..." Calder v. Bull, 3 U.S. at 399.

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public support." 167 Such is the reason that appeals to natural law have been so prevalent by the Court over the years: it speaks to the hearts of the public. The sense of public support is bred by the belief that the Court's decisions are made based upon the law, something about which the judges presumably have special insight, as opposed to being based on simple policy preferences, on which judges possess no more expertise than the proverbial man on the street. In order to acquiesce in court decisions, and to comply with their requirements, the people must believe that the court system, and the Supreme Court especially, is governed by a rule of law, not a rule of men. We must believe that the judicial system insulates us from the judges, from the prejudices, and from their areas whims of individual 68 of ignorance. 1 Here the rule of law blends with the separation of powers. Courts are designed to be insulated from politics to a great degree because their decisions should be concretely grounded in the law. The other branches handle the politics; the judiciary interprets the law. l69 If it were otherwise, the warning by President Lincoln in his First Inaugural Address could come to fruition: [T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court . . .the people will have ceased to be their own rulers, having to that extent practically 70 resigned their government into the hands of that eminent tribunal. 1 The People must respect judicial decisions to obey them. That respect and legitimacy come most readily when decisions are grounded in the founding document of our Government: the Constitution. Such is why nearly every opinion written in Supreme Court history dealing with a constitutional issue pays at least face-value homage to the Constitution, with each justice claiming that his or her opinion comports best with the sense of the document. "The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution." 7 ' To preserve its power and legitimacy, the Court ought to focus mainly on structure, where judicial activism is 167 Cox, supra note 15, at 122. See also Baker v. Carr, 369 U.S. 186, 267 (1962) (Frankfurter, J., dissenting) ("The Court's authority-possessed of neither the purse nor the sword-ultimately rests on sustained public confidence in its moral sanction."). 168 EATON, supra note 9, at 7. 169 This is not, of course, to say that legal decisions have no political ramifications; they clearly do. It simply means that so far as possible, the politics of the situation should be separated from the legal question before the court. 170 Abraham Lincoln, First Inaugural Address (Mar. 4 1861), in INAUGURAL

ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES: FROM GEORGE WASHINGTON 1789

TO GEORGE BUSH 1989 at 133 (U.S. G.P.O. 1989). 171 Bowers v. Hardwick, 478 U.S. 186, 194 (1986).

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concerned. The Court gains its power of judicial review from the design of the Constitution and as such should not practice that tool of last resort outside of its confines. The system's preferences for majorities, the separation of powers, judicial restraint, and the rule of law all point to practicing activism in one main way: as a jurisdictional policeman patrolling the structural boundaries of the Constitution. IV. THE CRITICS RESPOND AND ARE REJOINED Alternatives to the approach advocated in this paper vary in degree of difference and span the ideological spectrum. Perhaps the starkest contrast comes from the "political safeguards" theory of federalism. First argued by Professor Herbert Wechsler 172 in the 1950s and given its strongest voice by Professor Jesse Choper 173 in the 1980s, it argues that "the states do not need judicial protection from expansive federal legislation, because their role in the makeup and the operation of the national government provides them with sufficient means to protect their rights."1 74 Wechsler and Choper's main reason for making this argument is that they believe the Court should "conserve judicial legitimacy for what really counts: the protection of individual rights."l?5 Choper in particular argues that the Court possesses only limited authoritative capital, and that capital ought to be spent adjudicating individual rights cases. The position assumes that states are adequately represented in the national political process, so "any exercise of power by the federal government at the expense of the states therefore was ipso facto constitutional because the states . . . had given their political assent."176 The theory found its Supreme Court voice in Garcia v. San Antonio Metropolitan Transit Authority. 77 Additionally, although its main focus is federalism, the "political safeguards" theory includes also the "separation proposal," which holds that all questions involving allocations of power between Congress and the President ought to be 172 Herbert Wechsler, The PoliticalSafeguards of Federalism:The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954). 173 JESSE CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME COURT (1980). 174 Yoo, supra note 46, at 1312. Along essentially the same lines is Professor Herbert Hovenkamp's recent assertion that "history has made abundantly clear that the political process is quite effective at reducing federal assertions of power in favor of state prerogatives." Herbert Hovenkamp, JudicialRestraint and ConstitutionalFederalism:The Supreme Court's Lopez and Seminole Tribe Decisions, 96 COLUM. L. REV. 2213, 2221 (1996). 175 Yoo, supra note 46, at 1319. 176 Id. at 1325. 177 Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), overruled in part by United States v. Lopez, 514 U.S. 549 (1995).

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non-justiciable "because of the political branches' abilities to use other 178 tools at their disposal to resolve their differences." In essence, Choper's theory represents an approximately opposite view to the one presented here. Choper believes individual rights cases to be the most important on the Court's docket and thus they should receive its full attention. Federalism and separation of powers issues basically take care of themselves and so do not necessitate the Court's intervention. This theory seems reasonable, but it abounds with problems. Even assuming arguendo that political safeguards were adequate protection for the states when Weschler first proposed his theory, the situation has altered dramatically since then. Cloture is now available in the Senate by a three-fifths vote on most matters, rather than two-thirds. Rural districts are no longer "over-represented" in the House of Representatives because of the one person, one vote rule. Redistricting now is done just as much by the courts as it is by the state legislatures. Television has nationalized Senate elections. Federal grants for highways and other programs are used by Congress as carrots to pass national laws on drinking, seat belts, speeding, and so forth. 79 Even reaching back before the 1950s the state/federal equation had swung decisively over to the federal side. The state legislatures no longer select Senate members; instead, the people elect them by popular vote, eliminating what the Founders' believed to be the most important representative protection of the states in the federal government.180 The New Deal nationalized farm relief, retirement, and poverty programs.' 8' All of these factors add up to the conclusion that "[bloth analytically and impressionistically, the Wechsler-Choper view seems at least a little odd in the political world of today - an historical anomaly that no longer quite seems to fit."182 Looking past the national level to the states, the Choper theory fails to account for the possibility that state officials have several incentives to welcome federal intervention rather than protect state interests. Justice O'Connor makes this point in New York'8 3 when discussing locations for radioactive waste disposal centers: If a state official is faced with the same set of alternativeschoosing a location or having Congress direct the choice of a locationthe state official may prefer the latter, as it may permit the avoidance of personal responsibility. The interests of public officials thus may not 178 Yoo, supra note 46, at 1318-19.

Calabresi, supra note 5, at 792-93. 18o THE FEDERALIST No. 45 (James Madison), reprinted in 2 DEBATES, supra note 26, at 103. 181 Yoo, supra note 46, at 1321. 182 Calabresi, supra note 5, at 793. 179

183 New York v. United States, 505 U.S. 144 (1992).

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coincide with the Constitution's intergovernmental allocation of authority. Where state officials purport to submit to the direction of 4 Congress in this manner, federalism is hardly being advanced.l1 Richard Neely observes that the "states are more interested in spending federal bucks than they are in preserving state sovereignty. To my knowledge no state (except, possibly, Arizona in one instance) has turned down federal money to stand on federalist principle!"185 Neely believes this to be a positive turn of events; regardless, it demonstrates that political safeguards are inadequate to protect the structure of federalism. More important than the fact that the Weschler-Choper theory fails on functional grounds, is that it fails on formal constitutional grounds. Choper's approach is unable even to detect "whether or not separation of powers has been maintained because it makes no attempt to define or examine it. He solves the problem of interbranch disputes by simply assuming they do not require resolution (at least not by the judiciary)."186 The same criticism applies to his federalism proposal. In essence, Choper ignores the structures of the Constitution because he assumes that, functionally, things will work out to their most efficient end. Worse, and even more dangerous, is Choper's separation of individual rights from the Constitution's structure. As this article has discussed, the whole point of the structures of the Constitution is the protection of the People's liberty against tyranny. Choper's position is "a highly anachronistic view because the Bill of Rights did not appear in the Constitution when Article III first vested in the judiciary the power to adjudicate cases arising under the Constitution." 187 Finally, Choper's theory is premised on the belief that the Court can pick and choose the constitutional provisions it wants to enforce. "Nothing in the nature of the judiciary's role authorizes it effectively to repeal provisions of the Constitution." 88 In fact, the independence of the judiciary makes it especially suited to handle disputes between different levels and different branches of government. Few reasons exist to ignore completely either the structure of the Constitution or the provisions in the Bill of Rights.189 Id. at 183. Neely, supra note 94, at 90. 186 Redish & Cisar, supra note 29, at 493. 187 Id. 184 185

188 189

Id.

1 have not and am not saying that substantive violations of the Constitution

should not be invalidated by the Supreme Court. Thus, a statute preventing anarchists from espousing their views could and should be struck down as an obvious violation of the First Amendment. What I am saying is that these decisions by the Court should only be made in the rare cases of clear mistake or the other established rules of statutory construction. On structural issues, the Court ought to be less reticent.

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Richard Neely takes a different functional approach toward essentially the same end as Choper. He asks, "[I]f the states themselves aren't interested in [the] principle [of federalism], why should we be?" 90 He contends that federalism is now simply a matter of administrative convenience, and where it interferes with governmental efficiency, its principles ought to be set aside. 191 Professor Douglas Laycock goes one step further and contends that "[Ilederalism no longer divides power in any meaningful way. Instead, federalism duplicates and multiplies 92 power.1 This view ignores some vital points. In the first place, according to Justice O'Connor's opinion in New York, the fact that state officials may not care about their sovereignty does not mean that the Court or the country should not care about it. Moreover, concentrating on what federalism does for the states, just as concentrating on what the separation of powers does for each of the branches, misses the larger point. "ITihe Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself."193 So, whether the states are interested in protecting themselves or not, individual freedoms still deserve to be protected by government structure. Perhaps delegated power has become more "a matter of administrative convenience than an element of sovereignty." 194 However, either the principle of delegation stands, or the Constitution falls; there is no other way around it. It defeats the whole purpose of a written Constitution to assign meaning solely on the basis of convenience or efficiency. Efficiency is emphatically not central to our Constitution; ordered liberty is the main point. "The Constitution's structure requires a stability which transcends the convenience of the moment."195 Efficiency is not the acid test for constitutionality. "[Tihe fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives or the hallmarks - of democratic government." 196 The famous saying that "at least Mussolini made the trains run on time" was not intended as a compliment: a government can be an efficient tyrant. "The choices we discern as having been made in the Constitutional Convention impose 190 Neely, supra note 94, at 90. 191 Id. 192 Douglas Laycock, Federalismas a StructuralThreat to Liberty, 22 HARv. J.L. & PUB. POL'Y 67, 80-81 (1998). 193 New York v. United States, 505 U.S. 144, 189 (1992). 194 Neely, supra note 94, at 90. 195 Clinton v. City of New York, 524 U.S. at 448 (Kennedy, J., concurring). 196 INS v. Chadha, 462 U.S. 919, 944 (1983).

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burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked." 197 If it is efficiency we want, we ought to forego the right to vote altogether: the information, campaigning, and time involved make for highly inefficient government. "With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution."198 Those restraints include a Court that patrols the boundaries of delegated government power. Proponents of Choper's theory argue that defining sharp lines between executive and legislative functions or between national and local functions is too difficult for the courts. 199 This argument fails, however, because determining which fundamental rights are "implicit in the concept of ordered liberty,"200 or which rights comport with the "mystery of human life" 201 is not an easy task either. Even speaking more generically, "the line-drawing and fact-finding problems here are no more difficult than they are in the context of determining what constitutes an impermissible endorsement of religion or when . . . unprotected obscenity becomes protected pornography." 202 Professor Choper admitted as much: "A great many of the personal liberties questions that the Court decides . . . similarly subsume large policy issues with complex and debatable factual considerations." 203 To admit this in structural areas of constitutional adjudication is simply to acknowledge that several issues are not cut and dried; if they were, we would not need a court system at all. The Court should not shy away from an issue because it is difficult; rather, it should shy away if the Constitution offers no guidance. Federalism and separation of powers issues, however, are clearly within the import of the Constitution. A supporter of structural activism need not prove that all delegation of power questions will be decided correctly. What he must do is attempt to remain dedicated to the first principles of the Constitution.

197

Id. at 959.

198 Id.; see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952). 199 Hovenkamp, supra note 174, at 2220. 200 Palko v. Connecticut, 302 U.S. 319, 325 (1937).

201 Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992) (For the record, the actual quote is: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and the mystery of human life.") Id. Structural cases simply are not conducive to such open language. 202 Calabresi, supra note 5, at 804. 203 CHOPER, supra note 173, at 203.

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Dedicated pursuit of an ideal is a legitimating reality, even though the reach exceeds the grasp, provided that the people know that the effort is undertaken. And the value of the ideal is not diminished by utilitarian acknowledging that its conscientious pursuit serves the 20 4 function of giving legitimacy to constitutional decisions. Criticism of the viewpoint espoused in this article could conceivably also come from the right side of the political spectrum, because of its traditionally staunch support of judicial restraint, as we have seen with President Reagan, Judge Bork, and Professor Graglia. Perhaps the strongest criticism of judicial activism came in a 1996 symposium entitled: "The End of Democracy? The Judicial Usurpationof Politics,"20 5 by First Things, a conservative religious journal. It is an appeal that serves as a valuable wake-up call concerning the dangers inherent in judicial review. However, it goes overboard in establishing its case. For instance, the editors of First Things write that the "government of the United States of America no longer governs by the consent of the governed. With respect to the American people, the judiciary has in effect declared that the most important questions about how we ought to order our life together are outside the purview of 'things of their knowledge."'' 2 6 This article does not contend for a moment that substantive judicial activism has been good for this country. 2 7 But to say that the People no longer govern on any issues of importance borders on hyperbole. "The courts have not, and perhaps cannot, restrain themselves, and it may be that in the present regime no other effective restraints are available. If so, we are witnessing the end of 208 democracy." Problems abound with that statement. In the first place, as this article reiterates, we do not have a democracy; we have a system of constitutionalism: the People rule within bounds designed to inhibit their darker passions. Secondly, the restraints on the courts are available and exist within the system. To declare the system a dismal failure after over two hundred years simply because the Supreme Court has taken on the role of "knight errant"20 9 on some occasions throws the 204 205

Cox, supra note 15, at 138. Robert H. Bork et. al, Symposium, The End of Democracy? The Judicial

Usurpation of Politics, FIRST THINGS 18, Nov. 1996, reprintedin

THE END OF DEMOCRACY?

THE JUDICIAL USURPATION OF POLITICS (1997). 206 Id. at 5.

Professor Graglia puts it rather humorously when he asks, "[Wihat part of the Constitution do you think Justice Harry Blackmun was interpreting in Roe v. Wade, when he held that state restrictions on abortion violate the Due Process Clause of the Fourteenth Amendment-was it the word 'due' or the word 'process?'" Graglia, supra note 14, at 297. 208 Bork, Our JudicialOligarchy,supra note 205, at 6. 209 United Steelworkers of America, AFL-CIO-CLC v. Weber, 443 U.S. 193, 218 (1979) (quoting Justice Cardozo). 207

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baby out with the bath water. The contributors to the First Things debate decry the evils of judicial activism, but they enthusiastically support the idea of natural law.210 As we saw in Part III, as well as in Part I while defining judicial activism, natural law is open to the same abuses that judicial activism engenders. In fact, several of the decisions about which First Things complains, such as Roe, ground their opinions in a kind of natural law jurisprudence. The point here is not that the editors of First Things must either support Roe v. Wade or renounce natural law - clearly their version of natural law can be different from the Court's in Roe; the point is to understand that judging inherently involves the kinds of problems that the editors declare represent the "end of democracy." The solution to those problems is not to declare the system broken, but to demand adherence to true fidelity to that system (i.e., the Constitution). And it is perfectly within the power of the People to demand this, because, as we have learned, the power of the Supreme 21 Court is wholly dependent on its legitimacy. ' Obviously, several other theories of constitutional jurisprudence exist that have not been addressed. Only those that speak most directly to the position being advocated in this article have been rejoined. Structural activism is but one piece of the constitutional fabric, but it is a very important piece. It is time for advocates of both jurisprudential activism and judicial restraint to consider its validity. Having preached the virtues of judicial restraint for several generations, conservatives will have to reevaluate their position. As they did in the late 1930's, liberals and conservatives in the late 1990's will debate about whether the courts or the political process are better equipped to police the boundaries of federalism and the separation of 212 powers.

210 Bork, Our Judicial Oligarchy,supra note 205, at 6 ("Among the most elementary principles of Western Civilization is the truth that laws which violate the moral law are null and void and must in conscience be disobeyed."). 211 Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. L. 279, 285 (1957). The fact is ... that the policy views dominant on the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States. Consequently it would be most unrealistic to suppose that the Court would, for more than a few years at most, stand against any major alternatives sought by a lawmaking majority.

Id. Of course, sadly this is part of the problem to begin with-that the Court follows policy preferences at all, when it ought to be following the Constitution. But the point here is that the Court can only get away with what we let it get away with, given a certain amount of time. 212 Jeffrey Rosen, Nine Votes for JudicialRestraint, N.Y. TIMES, June 29, 1997, at

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V. CONCLUSION

In evaluating the role of the federal judiciary in our system and, more specifically, the proper place for judicial activism in the courts, it must be remembered that, with the passage of the Constitution, the Founders implemented a novus ordo seclorum: a new order for the ages.21 3 The Founders turned the political ideas of the world on their head. Virtually everyone believed that sovereignty must reside in only one governmental body, but the Founders divided it between the Federal and State levels. Most said that the separation of powers required that the branches of government must be completely separate, but the Founders split them while providing checks and balances. Conventional wisdom held that the legislature had to have the final say in what the laws would be, but the Founders made the People the final arbiters of the law, through the Constitution. This was not a republic in any of the ordinary senses of the term.21 4 Judicial review was part of this new order, because of the Founder's emphasis on a written Constitution. So, if it seems that judicial review is a unique tool, it is because it truly is, and like any of our tools, in the hands of corrupt man it can be misused. The Founders knew these things, and knew that if this new order was to succeed, it would require the ongoing vigilance of the government by the governed. This is why "[w]hen Americans stop arguing about legitimacy, about just government derived from the consent of the governed, and about the relationship between laws and higher law, this country will have turned out to be something very different from what the Founders 215 intended. "Limiting the federal judiciary, including the Supreme Court, to its proper Constitutional role thus is a vital liberty issue."216 This article has sought to describe some of that proper role, where it concerns the dangerous but necessary duty of judicial activism. The premise has been that the structure of the Constitution deserves and demands the main focus of the Supreme Court, because its fundamental role in our system

213

MCDONALD, supra note 82, at 262.

214

Id. at 287.

That government defied categorization by any existing nomenclature: it was not a monarchy, nor an aristocracy, nor a democracy, neither yet was it a mixed form of government, nor yet a confederated republic. It was what it was, and if Madison was presumptuous in appropriating the word republic to describe it, he was also a prophet, for thenceforth republic would mean precisely what Madison said it meant. Id. 215

Richard John Neuhaus, Preface to THE END OF DEMOCRACY, supra note 162, at

ix. 216 Edwin Meese III, A Return to Constitutional Interpretation from Judicial Lawmaking, 40 N.Y.L. SCH. L. REV. 925, 932-33 (1996).

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represents a primary way that judicial review can be legitimate. Excessive activism, as we have seen, produces grave consequences. First, there is concern that the Court may sacrifice the power of legitimacy that attaches to decisions within the traditional judicial sphere rendered on the basis of conventional legal criteria, and so may disable itself from performing the narrower but none the less vital constitutional role that all assign to it. Second, there is fear that excessive reliance on the courts instead of self-government through democratic processes may deaden a people's sense of moral and political responsibility for their own future, especially in matters of that results liberty, and may stunt the growth of political capacity 217 decision. of power ultimate the of from the exercise This article does not seek to push judicial activism to the point that these concerns will come to fruition. Rather, it proposes a partial antidote to these problems. First, by starting with the founding principles of this republic: man is fallen; this is a government of laws, not of men; we have a written constitution; no man is allowed to be the judge in his own cause; concentration of political power means tyranny; and the recognition that no dichotomy exists between structure and our sacred rights, any temptation to place excessive reliance on the courts instead of self-government is overcome. Second, by recognition of an adherence to what are the key structures in our system: separation of powers and federalism. Adherence to these key structures prevents the courts from whittling away their legitimacy, and focuses their powers on the narrower, but vital, constitutional role assigned to them. Proper judicial activism does not threaten the republic; it emboldens it. When activism leaches into an improper sphere, as it is bound to do, it remains for us to pull it back, and to remind the judiciary that we are a government of laws, not of men. While judges may interpret the law, they are not the law themselves; and when they attempt to equate themselves to the law, as they do when basing decisions upon their consciences rather than the Constitution, it is up to us to call them on the carpet, and point them back to the Text. Respect for the system and a desire to protect liberty demand no less of us, and proper judicial activism demands no less a fidelity from judges.

217 COX, supra note

157, at 103.

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