Why Is Judicial Review Proper?

The system of judicial review is originated in America ,which is the obvious feature of the rule of law in America,and is followed by other countries.However,in the view of democracy,American judicial review has the nature of"anti-democracy",because according to this system,unelected judges can reverse laws made by elected representatives.Here,people have to ask:Is American judicial review proper?If judicial review is improper,then is there any necessity for the exsistence of the system?If judicial review is proper,then what are the proper basis for the system?Because of this,the issuse on legitimacy of judicial review becomes the focus of American scholars,and many of them have proposed a lot of effective viewpoints.For the topic of legitimacy of judicial review,this thesis is to make a survey on American theories of judicial review.The thesis is composed of five chapters.Chapter 1,the sources of American judicial review.In this chapter,the source of American judicial review is to be stated from four aspects:the source of thinkings,the source of systems,the souce of laws,and the source of landmark case which established judicial review.First,from the source of thinkings,Coke's point of power subjected by reason,Lock's thinking of legislative and executive power discreted,the idea of Montesquieu's separation of powers and Hamilton's discrete and balance,which have important effects on the emergence of American judicial review.Second,from the source of systems,legal practices during the period of North American colony and in each state after independence established practical basis for American judicial review.Third,from the source of laws,common law,constitution and relevant law provided legal foundation for American judicial review.Last,under the effect of above-mentioned factors, the case of Marbury v. Madison was the landmark event of American judicial review.Chaper 2,the issue about legitimacy of American judicial review.First,this chaper states legitimacy puzzle of American judicial review:in theory,judicial review is confronted with the puzzle of anti-democracy,judicial tyranny and finality of judicial power;in practice,the power of judicial review exercised by court has led to strong protest by other government branches.Second,this chapter states various theories formed by different scholars on arguing in favor of the legitimacy of American judicial review.Among these,this chapter lays the emphasis on introducing substantive and procedural theories of judicial review,and these two theories try to resolve the dilemma of"counter-majority"in judicial review from different points of view in order to prove the legitimacy of judicial review in democracy.Substantive theories demonstrate the legitimacy of judicial review from the point of safeguarding basic constitutional values.Therefore,in the view of scholars with substantive theories,compared to other government branches,judges have obvious advantages while explaining basic values implied in constitution.Procedural theories demonstrate the legitimacy of judicial review from the point of promoting democratic process.In the view of scholars with procedural theories,constitution has also implied democratic process and the principle of national sovereignty,so in order to make democracy safeguarded,the right of self-decision should be realized through democratic process.Chapter 3,substantive theories about legitimacy in American judicial review(first):Bickel's theory of passive virtues.This chapter lays the emphasis on stating Bickel's theory of passive virtures.Bickel thinks that passive virtues may restrict arbitrary judges,maintain basic values established by constitution,realize the goal of judicial restriction,and resolve the dilemma of"counter-majority"at last.In the view of Bickel,judges are most suited to maintain basic constitutional values,because compared to other government branches,judges have obvious advantages,for example,judges have the features of insulation.At the same time,courts often invite other government branches to have dialogue with them while exercising judicial review,which shows respect to them.More important,courts can reconcile the tension between principle and expedient.As to how to practise passive virtues,Bickel has proposed concrete skills,courts'denials of certiorari and narrow decisions.He thinks that judicial review exercised by courts doesn't have the feature of anti-democracy but do promote democracy through these concrete skills.Of course,there are some limitations in Bickel's theories of judicial review.For instance,the passive virtues proposed by him are facial.As a matter of fact,a kind of fatal interventionist is hidden in his theory.Chapter 4, substantive theories about legitimacy in American judicial review(second):Sustein's theory of judicial minimalism.This chapter lays the emphasis on stating Sunstein's theory of judicial minimalism.Sustein follows procedural judicial minimalism in Bickel's passive virtures,and claims judicial restraint,but at the same time,Sustein's theory of judicial review is different from Bickel's because Sustein has proposed substantive judicial review.According to Sustein,judicial minimalism contains two aspects of procedural and substantive judicial minimalism in which procedural judicial minimalism is dominant. Procedural judicial minimalism refers to that courts should resolve the cases which need be solved and shy away issues irrelavant with specific constitutional cases; Substantive judicial review refers to that it must be presupposed by consistent substantive background in order to make judicial minimalism played a role. Judicial minimalism should be pursued by courts because it has passive and active significances.So far as the passive significance of judicial minimalism is concerned,it can reduce adjugement and error cost;As far as the active significance is concerned,it can allow and advance democracy.If judicaial minimalism is to be practised in judicial review,courts should make narrow and shallow decision.In other words,the adjugement made by courts shouldn't be wide but narrow,and shouldn't be deep but shallow.At the same time,courts should identify core constitutional values.According to this,Sustein has proposed ten core constitutional values.Siminarly,there are some defects in the premises of Sustein's theory of judicial review.For instance,in his premises,political decision has more democratic legitimacy than judicial one,and political branches are more capable to protect individual's rights than courts to do.Chapter 5,procedural theories about legitimacy in American judicial review:Ely's theory of strengthening democracy.This chapter lays the emphasis on Ely's theory of strengthening democracy.Ely criticizes substantive theories of judicial review sharply.He thinks that whether interpretivism or noninterpretivism of substantive theories,they are both roads lead to Rome,they both seek substantive values,which is undesirable.Therefore outside interpretivism and noninterpretivism,he is opening the third road,the theory of judicial review which aims at strengthening democratic process.He thinks that judicial review can strengthen democracy which is reflected in two aspects of guaranteeing participation and reinforcing representative system.The theories of judicial review in the orientation of process should be advocated for the following reasons:Firstly,attention to process is the obvious feature of American constitution,thus most of provisions in American constitution play close attention to structure and process;Secondly,as for defects in representative democracy,judicature may strengthen it;Lastly,judges are procedural experts and political outsiders, therefore courts are most suited to play a role of strengthening representative democracy.As far as practising the theory of strengthening democracy is concerned,courts should mainly strengthen it in two ways:clearing the channels of political change and facilitating the representation of minorities.Here,the starting point for the third road opened by Ely is all right because he tries to solve such dilemma:either abiding by the intention of constituents which is impossible;or making judges'judgement entered into constitution and turning it into the foundation of judicial review which is anti-democracy.However,in his theory of judicial review the premise of substantive values uninvolved is questioned even more.Through the analysis of this thesis,whether Bickel's and Sustein's substantive theories of judicial review or Ely's procedural theory which advocate judicial restraint against"counter-majority"of judicial review and thus prove democratic legitimacy of judicial review.These theories are products in specific historical periods,thus they fit different social practice in America,and there doesn't exsist the issue which is better or which is worse.More important,in American theories of judicial review scholars'argument about the legitimacy of judicial review doesn't pay attention on whether courts are entitled to exercise judicial review but concerning about which courts should exercise judicial reviw in what extent and thus it can be proper.In this connection,American theories of judicial review have significant reference to constitutional enforcement in our country.Today,people agree with that constitution must be enforced,but some standpoints and actions such as private law of the constitution and constitution of determinism are appearing,which extremely amplify constitutional function and as a result they form artificial bottleneck for initial constitutional enforcement in China.So it is necessary for both theorists and practitioners to draw lessons from American theories of judicial review.When both of them are exploring concrete route of Chinese constitutional enforcement,they should also begin to pay attention to the range of Chinese constitutional enforcement.