Oleh: Rudy | Mei 13, 2010

Constitutionalism, Rule of Law, and Judicial Review

Constitutionalism as the integral part of rule of law in new democracies has been believed as magic spell for development especially in promoting economic development, Hernando De Soto[1] makes claim that “Development is possible only if efficient legal institutions are available to all citizens.”  Furthermore, Amartya Sen masterpiece work Development as Freedom gives another possibility for the relationship between development and constitutionalism; in any case, this possibility makes the constitutionalism may matter for development and makes it become the one core of law and development study.

It is often said that constitutionalism is in considerable tension with democracy. Thomas Jefferson was emphatic on the point, arguing that constitutions should be amended by each generation in order to ensure that the dead past would not constrain the living present. Many contemporary observers echo the Jeffersonian position, claiming that constitutional constraints often amount to unjustified, antidemocratic limits on the power of the present and future[2].

The authority of courts to review and declare unconstitutional popularly enacted legislation is an aspect modern constitution that strikes many as inconsistent with the idea of democracy. As Hart say’s this as extraordinary judicial phenomenon to be particularly hard to justify in a democracy[3]. As Alexander Bickel states it: The root difficulty is that judicial review is a counter majoritarian force, this is the reason the charge can be made that judicial review is undemocratic[4].  A related reason offered to support the claim of the undemocratic nature of judicial review is that judges are not electorally accountable to the majority. As John Ely says: The central problem of judicial review is a body that is not elected or otherwise politically responsible in any significant way telling the people’s elected representatives that they cannot govern as they’d like[5].

The basic objection to judicial review might now be reformulated in the following way: judicial review, since it involves the authority to overrule legislation enacted through procedures that accord with this principle, is a limitation upon citizens’ equal rights of participation. It does not matter whether the judges making these decisions are electorally accountable or not. By exercising their equal political rights through legislative procedures designed to accommodate them, citizens have already made as democratic a determination as can be made[6].

All these objections are based on the conception of democracy in purely procedural term.  Now, of course if democracy is simply defined in procedural terms as a matter of stipulation, then it is trivial that judicial review is undemocratic. The appropriate way to address questions of the legitimacy and scope of judicial review in a democracy is not by focusing simply upon the political rights and procedures that have traditionally been held to be central to a democracy. Instead, we need look to the values and ideals in virtue of which we hold such procedural aspects of democracies as equal political rights, majority rule, and political accountability important. Then it can be asked what role, if any, judicial review has in promoting or undermining these values[7].

Judicial review of legislation has inherently undemocratic tendencies since it is the revocation of the will of the majority on the basis of a decision by unelected judges. But when this revocation finds its basis in the will of the people, or fundamental values, or some other extra-textual source, but to the text of the Constitution, it can be reconciled with democracy[8]. As Ely[9] puts it, “Thus the judges do not check the people, the Constitution does, which means the people are ultimately checking themselves”.  If it turns out that there is no conception of judicial review that would maintain and promote the ideals that stand behind our commitment to democracy, then the categorical claim that judicial review is undemocratic can be sustained. If, however, on some conception of its role judicial review can better implement the ideals upon which political democracy is based, then this is a reason for concluding, not simply that judicial review can be compatible with democracy, but that it is an important democratic institution.

To prevent the undemocratic way of judicial review, judges cannot use their own values, however considering the broad phrase of constitutional provision; clause bond interpretive is also impossible.  Therefore the introduction of moral reading of constitution by Ronald Dworkin is one way to reconcile the protection of rights and the undemocratic latent of judicial review.  This reconciliation is very much important for the developing countries in avoiding the failure of constitutionalism.

The democratic argument for judicial review rests on the assumption that the courts can play a significant role in maintaining the conditions of democratic sovereignty. An obvious objection to this argument is that we have no assurance that judicial review will be properly exercised to correct for the failures of legislative processes. Just as likely it will be used to secure the power of elites against legitimate democratic measures[10]. This is an empirical question that needs an answer through empirical case study.

[1] Hernando De Soto, 1989, The Other Path: The Invisible Revolution In The Third World, pp 186.

[2] Cass R. Sunstein, Constitutionalism and Secession, The University of Chicago Law Review, Vol. 58, No. 2, Approaching Democracy: A New Legal Order for Eastern Europe (Spring, 1991), pp. 633-670

[3] H.LA. Hart, American Jurisprudence Through English Eyes, in Essays in Jurisprudence and Philosophy (New York: Oxford University Press, 1983), p. 125.

[4] Alexander Bickel, The Least Dangerous Branch (Indianapolis: Bobbs-Merrill, 1962), pp. 16-17.

[5] Ely, Supra note 43, p. 4—5 .

[6] Samuel Freeman, Constitutional Democracy and the Legitimacy of Judicial Review, Law and Philosophy, Vol. 9, No. 4 (1990 – 1991), p. 334.

[7] Ibid. p. 340.

[8] Ely, Supra note 43. p. 8—9.

[9] Ibid. p. 8.

[10] Peter Railton argues that the court is an elite institution that maintains the power of elites in liberal democracies via judicial review, in Judicial Review, Elites, and Liberal Democracy, Nomos, XXV: Liberal Democracy (New York: NYU Press, 1983), 153-80.



  1. nice post…

  2. I question how come you called this particular
    blog, Select Blinds “Constitutionalism, Rule of Law, and
    Judicial Review | Membangun dari Daerah”. Either
    way I really loved the post!Thank you-Josefina

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