Intention Supremacy And The Theories Of Judicial Review

In the late 1980s, a vigorous debate began about how we may best justify, in constitutional terms, the English courts’ jurisdiction to judicially review the exercise of public power derived from an Act of Parliament. Two rival theories emerged in this debate, the ultra vires theory and the common law theory. The debate between the supporters of these two theories has never satisfactorily been resolved and has been criticised as being futile. Yet, the debate raises some fundamental questions about the constitution of the United Kingdom, particularly: the relationship between Parliament and the courts; the nature of parliamentary supremacy in the contemporary constitution; and the possibility and validity of relying on legislative intent. This book critically analyses the ultra vires and common law theories and argues that neither offers a convincing explanation for the courts’ judicial review jurisdiction. Instead, the author puts forward the theory that parliamentary supremacy – and, in turn, the relationship between Parliament and the courts – is not absolute and does not operate in a hard and fast way but, rather, functions in a more flexible way and that the courts will balance particular Acts of Parliament against competing statutes or principles. McGarry argues that this new conception of parliamentary supremacy leads to an alternative theory of judicial review which significantly differs from both the ultra vires and common law theories. This book will be of great interest to students and scholars of UK public law.

In the late 1980s, a vigorous debate began about how we may best justify, in constitutional terms, the English courts jurisdiction to judicially review the exercise of public power derived from an Act of Parliament. Two rival theories emerged in this debate, the ultra vires theory and the common law theory. The debate between the supporters of these two theories has never satisfactorily been resolved and has been criticised as being futile. Yet, the debate raises some fundamental questions about the constitution of the United Kingdom, particularly: the relationship between Parliament and the courts; the nature of parliamentary supremacy in the contemporary constitution; and the possibility and validity of relying on legislative intent. This book critically analyses the ultra vires and common law theories and argues that neither offers a convincing explanation for the courts judicial review jurisdiction. Instead, the author puts forward the theory that parliamentary supremacy and, in turn, the relationship between Parliament and the courts is not absolute and does not operate in a hard and fast way but, rather, functions in a more flexible way and that the courts will balance particular Acts of Parliament against competing statutes or principles. McGarry argues that this new conception of parliamentary supremacy leads to an alternative theory of judicial review which significantly differs from both the ultra vires and common law theories. This book will be of great interest to students and scholars of UK public law. "

This powerfully argued appraisal of judicial review may change the face of American law. Written for layman and scholar alike, the book addresses one of the most important issues facing Americans today: within what guidelines shall the Supreme Court apply the strictures of the Constitution to the complexities of modern life? Until now legal experts have proposed two basic approaches to the Constitution. The first, “interpretivism,” maintains that we should stick as closely as possible to what is explicit in the document itself. The second, predominant in recent academic theorizing, argues that the courts should be guided by what they see as the fundamental values of American society. John Hart Ely demonstrates that both of these approaches are inherently incomplete and inadequate. Democracy and Distrust sets forth a new and persuasive basis for determining the role of the Supreme Court today. Ely’s proposal is centered on the view that the Court should devote itself to assuring majority governance while protecting minority rights. “The Constitution,” he writes, “has proceeded from the sensible assumption that an effective majority will not unreasonably threaten its own rights, and has sought to assure that such a majority not systematically treat others less well than it treats itself. It has done so by structuring decision processes at all levels in an attempt to ensure, first, that everyone’s interests will be represented when decisions are made, and second, that the application of those decisions will not be manipulated so as to reintroduce in practice the sort of discrimination that is impermissible in theory.” Thus, Ely’s emphasis is on the procedural side of due process, on the preservation of governmental structure rather than on the recognition of elusive social values. At the same time, his approach is free of interpretivism’s rigidity because it is fully responsive to the changing wishes of a popular majority. Consequently, his book will have a profound impact on legal opinion at all levels—from experts in constitutional law, to lawyers with general practices, to concerned citizens watching the bewildering changes in American law.

The unique and antidemocratic power of judicial review by the United States Supreme Court is not a bug, but a feature. Its role was critical in establishing and affirming a separation of powers horizontally among the federal branches as well as vertically between the federal government and the individual states. More than this, the Court's power of judicial review acts as an instrument of rights theory and is informed by a rich and rarely-discussed intellectual history. Though judicial review as a mode of constitutional law and the legal history surrounding it has been discussed by various legal scholars, political scientists, and historians over the past century, the intellectual history and political philosophy that informs it has received short shrift in recent decades. This work thus bridges the divide between the rights values that exemplified the American Revolution and the design of governance established in the early American republic with the constitutional and judicial supremacy that the Court's power to nullify legislation exemplifies. The North American colonies that became independent states differed from their British predecessors not merely in their ultimate rejection of monarchy. Nor was the separation due solely to a priority of local governance and autonomy over the whims of a distant empire, crucial as those impulses no doubt proved to be. American resistance, followed by American independence, followed by a new form of American constitutionalism, were all influenced by a remarkable philosophical disparity from that of England. This difference was a rejection of legislative supremacy. The rise of the British Parliament during England's Glorious Revolution toward the end of the seventeenth century was reformulated a century later in North America following the American Revolution. Whereas legislative supremacy marked England's revolutionary age in the late 1680s, a rejection of legislative supremacy for republican constitutionalism and the rule of law was embraced instead in the United States. Through its championing of judicial review, the United States rejected concepts of majoritarian tyranny, prioritized fidelity to founding charters over that of common legislation, and created a judicial system that acted as a guardian of the rights of the people. The emergence of judicial review can be seen in the history preceding the Marbury v. Madison decision (often, and erroneously, referred to as the first recognizable moment of the legal assertion in 1803), the ratification of the United States Constitution, and even prior to the American Revolution. The philosophical distinction that there is a notable difference between the people's representatives and the people themselves, that the people are the sovereign, and that rights belong to the individual and precede government, separated the intellectual thought between the English and Americans long before actual revolution began. Establishing that the judicial power was to include the power to nullify laws passed by the duly-elected representatives of the people marked one of the last and most significant intellectual breaks between Americans and their forebears. The American Revolution and the United States Constitution did not fully establish judicial review. Complications arising from the institution of slavery, Indian relations, the original scope and jurisdiction of the Bill of Rights, and disagreement regarding constitutional interpretation placed obstacles against affirming a reliable system of jurisprudence. Only after the Civil War, and with the ratification of the Fourteenth Amendment, would the judicial power slowly begin to express itself as it had been seen by notable Americans for generations. For the next century and a half, and largely between 1920 and 2020, the Court finally utilized judicial review in the way American founders including James Wilson and Oliver Ellsworth had asserted would be its most recognizable feature: as an instrument of rights values and protector of individual rights.

Recent years have witnessed a vibrant debate concerning the constitutional basis of judicial review,which reflects a broader discourse about the role of the courts, and their relationship with the other institutions of government, within the constitutional order. This book comprehensively analyses the foundations of judicial review. It subjects the traditional justification, based on the doctrine of ultra vires, to criticial scrutiny and fundamental reformulation, and it addresses the theoretical challenges posed by the impact of the Human Rights Act 1998 on administrative law and by the extension of judicial review to prerogative and non-statutory powers. It also explores the relationship between the theoretical basis of administrative law and its practical capacity to safeguard individuals against maladministration. The book seeks to develop a constitutional rationale for judicial review which founds its legitimacy in core principles such as the rule of law, the separation of powers and the sovereignty of Parliament. It presents a detailed analysis of the interface between constitutional and administrative law, and will be of interest to all public lawyers.

Contains papers and comments from the conference on the Foundations of Judicial Review, held in Cambridge, England, May 22, 1999, and some previously published papers.

What factors account for the development and use of judicial review? Under traditional separation of powers theory, courts are supposed to act as an important check on governmental excesses or abuses. Yet, there is little theoretical consensus on how courts make these critical decisions and create opinions - due in part to a lack of broadly comparative testing. My dissertation explores the factors that account for court activism and court independence, focusing on three main visions, or arguments, for judicial review. These visions of judicial review are multi-faceted, yet all in their own way seek to explain whether and how judges are able to create representative rulings that deliver in practical ways the abstract benefits of democratic rule. I then test these visions using data from several newer democracies in Eastern Europe. One vision for judicial review focuses on the ability of judges engaging in judicial review to find the 'right' answer to constitutional questions, based on legal doctrine and jurisprudential principles. This 'legalistic' view fits within a larger rule of law-based vision of democracy, in which the purpose of democratic government is to ensure fair processes and orderly social outcomes within the constraints of the law. A second vision for judicial review focuses on the role of courts as protectors of constitutional rights, particularly the rights of minority groups against majority tyranny. This idea fits within the larger liberal, rights-protecting view of modern democracy, in which the provision and protection of positive individual rights is of paramount concern. A third vision focuses on the potential for judicial review to act as a majoritarian instrument. Majoritarian judicial review may occur for several reasons. First, judges come to the bench with certain ideological beliefs. Rules in most countries place popularly elected leaders in charge of appointing judges to high courts. With these appointment rules, it is unlikely that court opinions with be far from the views of lawmaking majorities. Thus, judicial review might largely serve to legitimate policies enacted by current elected leaders (Dahl 1957), but may also be used to strike non-favored policies (Whittington 2005, 2007; Rogers 2001). Second, courts may respond directly to public opinion, limiting or altering the exercise of judicial review in response to changes in public support for the judiciary (Clark 2011). Third, judges may respond to institutional incentives, like reappointment pressures, that encourage outcomes from judicial review consistent with majority preferences. Using new data from Eastern European democracies, I investigate the implications from these visions of judicial review. In Chapter Three, I investigate several preliminary institutional factors that could influence the exercise of judicial review. Specifically, I find that judicial panels are much more likely to overturn laws when there is an ideological divergence between the court and the law under review. At the same time, the propensity of courts to overturn laws is also greater when government monitoring and oversight agencies refer laws for constitutional review. This second finding suggests a role for strategic decision-making by constitutional courts. Based on the types of cases these courts both hear and overturn, there is also some evidence in favor of a type of 'rights-protecting' judicial review. Chapter Three finds preliminary evidence suggesting the presence of a 'majoritarian' vision of judicial review, one in which judges follow the preferences of the elected leaders who appoint them. Yet, as noted above, there are several different avenues through which majoritarian review can potentially travel. In Chapter Four, I test implications from these different majoritarian visions. Specifically, I examine how macro-level concepts like parliamentary preferences, public support, governmental power, and government coalitions -- variables that fit directly within the majoritarian framework - might influence the exercise of judicial review. The majoritarian vision for judicial review anticipates ideological voting among judges on courts of constitutional review. However, other structural factors may motivate judicial decision-making, as well. Chapter Five investigates whether institutional incentives also influence the choices judges make. Moving from case outcomes to the individual decisions judges make, I examine whether reappointment concerns lead to differentiation in decision-making. I test this theory of career-oriented judging with longitudinal data from three European constitutional courts that vary in their appointment and retention processes. Ultimately, the findings of this chapter show the influence of both career concerns and ideology on judicial decision-making and outcomes. Finally, Chapter Six examines whether the legalist vision of judicial review can help to explain judicial outcomes. Within the legalist vision, judicial review is a normatively desirable rule for democracies due to the ability of judges trained in methods of legal analysis to apply neutral legal principles -- including the rules developed from past cases -- to reach the 'right' legal outcomes and thus ensure the rule of law within society. I test the legalist vision in a wholly new environment: constitutional courts in civil law systems. Using a unique dataset of citations collected from opinions of the Polish Constitutional Tribunal, I find evidence of increasingly sophisticated use of case law, as well as strategic use of precedent to shape the direction of opinions. Overall, results indicate these judges use case citations to provide both legal legitimation for their opinions and strategic advancement of their policy, with little evidence in favor of a legalist vision for judicial review. Using evidence from Eastern European democracies, I have found that several visions of 'majoritarian' judicial review can be used to explain how courts engage in judicial review. At the same time, there is limited evidence that a 'rights-protecting' vision of judicial review is realized in practice, and little evidence to confirm the existence of a pure 'legalist' vision of judicial review. Chapter 3 showed the importance of ideology to judicial decision-making across multiple countries, but also the value to courts of outside actors who can ensure compliance with judicial rulings. Chapter 4 expanded on the majoritarian vision, confirming the value of public opinion and public support to judicial outcomes but also showing that courts are more active in reviewing legislation that may be far from the majority will. Chapter 5 confirmed another aspect of the majoritarian vision - that institutional incentives can influence career-oriented judges to vote in line with the interests of reappointing agents. Finally, Chapter 6 examined the use of precedent among constitutional court judges in civil law systems. Little evidence was found to confirm a legalist vision of judicial decision-making, though there is evidence that judges in the civil law tradition, like their counterparts in the United States, use precedent to advance ideological and strategic goals. Overall, these chapters have shown the importance of ideology and strategic interactions outside of the United States. These two factors are well established among those who study the United States courts, yet relatively few studies have compared the importance of these factors to judicial decision-making across multiple countries. The cross-national perspective taken in this study does just that, and provides an important extension of past empirical work examining the judicial decision-making and the normative role of judicial review in democratic governance.