NCJ Number
73734
Date Published
1980
Length
510 pages
Annotation
The proper role of the United States Supreme Court in exercising its power of judicial review is set forth through an examination of three categories of constitutional provisions.
Abstract
Most provisions of the Constitution may be separated into three general categories: (1) the allocation of power between national government and States, (2) the separation of power, and (3) personal liberties. It is argued that although judicial review is incompatible with a fundamental precept of American democracy--majority rule--the Court must exercise this power in order to protect individual rights which are not adequately represented in the political processes. When judicial review is unnecessary for the effective preservation of the constitutional scheme, however, the Court should decline to exercise its authority. By so abstaining, the Justices both reduce the discord between judicial review and majoritarian democracy and enhance their ability to render enforceable constitutional decisions when their participation is critically needed. In this spirit, it is argued that the Court should not decide constitutional questions with regard to the power of national and State government since State interests are forcefully represented in the national political process. Similarly the Court should not rule on questions concerning the respective powers of Congress and President since these issues can be trustworthily resolved without judicial involvement. Since the Federal judiciary is not well represented in the national political process, the Court should continue to use its power to reject attempts by Congress and the President that improperly restrict or expand Federal judicial authority. The book includes about 1500 bibliographical footnotes.