Can Rights-based Judicial Review be Justified? Flashcards
What does Eisgruber regard Supreme Courts as
a representative institution which is well constituted to speak on people’s behalf on matters of principle
What conception of democracy does Eisgruber argue for
Democracy should be impartial therefore it should respond to interests and opinoins of all people rather than serving majority or fraction of people
According to Eisgruber what does court serve
Court serves democratic values rather than oppose them
what is JR usually regarded as
Constrains people from acting on their own judgment
if constitution authorises its citizens to choose among competing conceptions of equal protection and executive power yet unelected judges are making these choices
peopel disagree about
give example
what justice requires and what rights individuals should have
e.g. some people believe unjust for gov to ban abortion, others believe it is unjust to permit
The two conventional defences of judicial review run into trouble b/c they both
presume that only the legislature can speak on behalf of a democratic people and JR constrains legislature’s power
The two conventional defences of judicial review run into trouble b/c they both
presume that only the legislature can speak on behalf of a democratic people and JR constrains legislature’s power
What does Eisburgen argue and how does JR fit
Eisburgen argues that democracy i.e. government by the people is not limited to government by the legislature
Supreme court/judicial review is a democration institution. JR is an institutional mechanism for implementing a complex, non-majoritarian understanding of democracy
How may legislature not represent electoral majorities?
Decisions influenced by interest groups, lobbyists, news media even though legislature uses majoritarian voting rules
Even if legislature is faitful to electoral majorities, how does it represent the people poorly?
- Majority is not the same as the whole
- Electorate is not the same as people
Is the best institution to represent people majority or minority rule?
Majority is more democratic than minority rule but not always the best institution to represent people
where might we see minority rule
in countries that allow their officials to choose their own successors or watch powerful military faction fight for control of gov
In this situation, class of nobles of powerful army generals will rule for their own benefit according to their ideas about justice and morality
Why are people not the same as the electorate?
electorate made up of voters and voters does not equal individuals or persons because when individual take on the office of a voter, they have little incentive to take their responsibility seriously b/c
- Each individual vote will have no impact on the outcome of the election
- Choose among limited set of options, no reasons, anonymous
because people are not the same as electorates, we should not presume
that the best representatives of people are those most repsonsive to electoral majorities.
many if not all Constitution’s abstract provisions share an important feature that is
they refer to or directly implicate moral issues
the constitution’s most significant rights protecting provisions are drafted with explicit reference to freedom, equality and other moral ideas
Democratic gov should aspire to be
impartial rather than majoritarian. should respond to interests and opinons of all people, not merelly seriving the majority or other fraction
Describe how it is not easy for democratic gov to speak about contested values
policy between majority and minority on abortion.
cannot share on majority and minority positions on a moral question.
What is the agreement (shared sense) beneath moral dispute (e.g. abortion)
- morality is different from mere preferences and interest
- should have moral reasons to back up moral positions
- good faith moral discussion tends to improve the quality of moral reasons and moral positions we adopt
How can gov rule impartially on moral disputes?
firstly
- respect people’s belief that moral reasons is different from self interested reasons.
* gov should resolve moral issues from reasons of moral principle rather than self interest
How can gov rule impartially on moral disputes?
second
- gov must respect people’s conviction that sustained public deliberation helps moral opinoin to converge upon new and better positions
How can gov rule impartially on moral disputes?
second
expand
ensure its vision of justice has popular appeal and reflect benefits of public discussion rather than idosyntric whims of few privileged DM
How can gov rule impartially on moral disputes?
Every citizen who disagrees with a particular result
can still believe that the decision was a result of government’s good faith to pursue project which should in the long run lead to adopt principles that are valid according to her own criteria
How can gov rule impartially on moral disputes?
what does committed, rational discussion lead to?
moral improvement over the long haul
How can gov rule impartially on moral disputes?
since committed, rational discussion lead to improvement over the long haul, what may the disappointed citizen hope
disapppointed citizen hope that she will be persuaded she is mistaken or gov will change its position
as such democratic gov can construct conception of justice on behalf of differing and disputatious people
A democratic gov must rule impartially. how does gov rule impartially on moral issues
decide issues on the basis of moral reasons that have some popular appeal
Both institutions can speak on the behalf of the people and Eisgruber thinks that sometimes we have reason to think that judges and JR will do this more effectively and accurately than legislature.
firstly
Nothing in their training that gives them more wisdom or insight about what morality requires of us and what rights require of us
democracy requires us assume parity of basic moral judment: all mentally competent adults have equal capacity to tell right from wrong
Both institutions can speak on the behalf of the people and Eisgruber thinks that sometimes we have reason to think that judges and JR will do this more effectively and accurately than legislature.
even if judges are no more virtuous or sightful than ordinary american,
judges are disinterested, they make honest, principled judgment - judgement about what is right and wrong; acting on their own moral convictions
- enjoy tenure and the judicial independence that comes with it compared to politicians who are equally moral and equally insightful but may act for the benefit of career
Defense of politicals fail for 2 reasons
- judges enjoy judicial independence
2.
Judges must take moral responsibility for their decisions b/c their reputation of a fair DM is on the line when they rule
- provide public account of reasons vs voters vote in secret and without explanation
- their vote matters a lot to the outcome of the case vs voters exercise influence in groups so individual vote has no impact on outcome
Democracy
what does democratic theory say about electorates
ask what circumstances voters (the electorate) can adequately represent the people
Democracy
advantage of judge representing people on moral issues vs voters
- tenure (social prestige, comfortable salary)
* - less likely to disregard or distort their moral judgement - Public accountability judges must account for their votes, provide reasons and their votes are decisive they have greater incentive to distinguish moral principle for self interest
- voters are not less insightful than judges but they are less disinterested
*
Democracy
advantage of judge representing people on moral issues vs voters
- tenure (social prestige, comfortable salary)
* - less likely to disregard or distort their moral judgement - Public accountability judges must account for their votes, provide reasons and their votes are decisive they have greater incentive to distinguish moral principle for self interest
- voters are not less insightful than judges but they are less disinterested
*
