Dispute on a Popular Election of Judges in American Public Discourse during Period of “Jacksonian Democracy”

2021 ◽  
Vol 1(23) ◽  
pp. 103-122
Author(s):  
Jacek Srokosz
Keyword(s):  
Judicial Review ◽  
Democratic Party ◽  
Public Discourse ◽  
The United States ◽  
Democratic Legitimacy ◽  
The People ◽  
Election System ◽  
Jacksonian Democracy ◽  
Constitutional Conventions ◽  
The 19Th Century

The article presents the debate that took place between supporters and opponents of popular election of judges in the United States during the so-called “jacksonian democracy” (also called populist democracy) from the early thirties of the 19th century to the outbreak of the Civil War. Starting from the presidency Andrew Jackson, the political fight between mere people represented by the Democratic Party, and the elites whose interests defended the Whigs Party took place in the US. The subject of the dispute has become a demand for a broader participation of the people to exercise power and democratization of the existing oligarchic republic, through the extension of electoral rights and widespread elections as methods of casting most public office. One of the subjects of the dispute during the state constitutional conventions was the issue of popular elections of judges. The implementation of popular election system demanded Democrats emphasizing the importance of democratic legitimacy for the independence of the judiciary and the development of the Judicial Review. Against the popular elections of judges were Whigs convinced that this will lead to the fall of authority of the judiciary and make it subject of Parties' competition. The author indicates that the debate ended with the victory of democrat postulates and introducing the popular election of judges in most states. However, lawyers participating in constitutional conventions, representing both Democrats and Whigs, have introduced a number of institutions ensuring the independence of the judiciary and the possibility of effective implementation of the judicial review. Political changes from the period of Jakcson’s democracy have contributed to raising the authority of the judges and strengthened the role of judiciary in the American political system.

Afghanistan: Martial Society Without Military Rule

2021 ◽  
Author(s):  
Amin Tarzi
Keyword(s):  
World War Ii ◽  
Soviet Union ◽  
19Th Century ◽  
Democratic Party ◽  
Central Government ◽  
The United States ◽  
The Soviet Union ◽  
Military Campaigns ◽  
The 19Th Century ◽  
The Military

Since its inception as a separate political entity in 1747, Afghanistan has been embroiled in almost perpetual warfare, but it has never been ruled directly by the military. From initial expansionist military campaigns to involvement in defensive, civil, and internal consolidation campaigns, the Afghan military until the mid-19th century remained mainly a combination of tribal forces and smaller organized units. The central government, however, could only gain tenuous monopoly over the use of violence throughout the country by the end of the 19th century. The military as well as Afghan society remained largely illiterate and generally isolated from the prevailing global political and ideological trends until the middle of the 20th century. Politicization of Afghanistan’s military began in very small numbers after World War II with Soviet-inspired communism gaining the largest foothold. Officers associated with the People’s Democratic Party of Afghanistan were instrumental in two successful coup d’états in the country. In 1979, the Soviet Union invaded Afghanistan, ending the country’s sovereignty and ushering a period of conflict that continues to the second decade of the 21st century in varying degrees. In 2001, the United States led an international invasion of the country, catalyzing efforts at reorganization of the smaller professional Afghan national defense forces that have remained largely apolitical and also the country’s most effective and trusted governmental institution.

The Counter-Majoritarian Difficulty and the Road not Taken: Democratizing Amendment Rules

2012 ◽  
Vol 25 (1) ◽  
pp. 53-78
Author(s):  
Joel I. Colón Ríos
Keyword(s):  
Judicial Review ◽  
Institutional Arrangement ◽  
Basic Feature ◽  
Constitutional Reform ◽  
Democratic Legitimacy ◽  
Judicial Decision ◽  
Constitutional Review ◽  
The Road ◽  
The People ◽  
Elected Representatives

Discussions about the democratic legitimacy of judicial review of legislation are usually framed in terms of the so called ‘counter-majoritarian’ difficulty, the idea that judicial review is a deviant institution in a democracy. How can a country be considered democratic if a group of non-elected judges have the faculty to strike down laws that have been adopted by a majority of the elected representatives of the people? In framing the question in those terms, however, we tend to forget that there is nothing in the counter-majoritarian difficulty suggesting that judicial review of legislation is necessarily problematic from a democratic perspective. An institutional arrangement that gives judges the faculty to strike down laws inconsistent with the constitution only creates a counter-majoritarian difficulty if the constitution cannot be amended by simple majorities. In not paying proper attention to the role played by a rigid amendment process in the existence of a counter-majoritarian difficulty, this article argues, we have missed the opportunity of democratizing processes of constitutional reform in important ways while at the same time maintaining in place a system of constitutional review in which judges retain the ability of striking down legislation.The idea of giving simple majorities the possibility of having the final word on the meaning and scope of rights is of course not new. In fact, it is the basic feature of the weak system of judicial review now present in several commonwealth countries. However, such a system does not go beyond courts and legislatures, and it is therefore open to the same types of critiques advanced by defenders of strong judicial review against systems of legislative supremacy. The article defends the view that in a democratic society, deliberation and decision-making about the meaning and content of the constitution should extend beyond the ordinary institutions of government. Under that conception, a more democratic approach to the counter-majoritarian difficulty would provide popular majorities (as opposed to legislatures) with the faculty of amending the fundamental law in order to respond to a judicial decision that invalidated (or validated) an ordinary law. For example, citizens could be able to engage in the activity of constitutional reform through non-constituent assemblies, triggered by popular referendum and having the specific mandate of deliberating about the judicial decision in question and the power to propose constitutional changes that would be subject to popular ratification.

Judge and lawgiver in Anglo-American history

2003 ◽  
Vol 11 (3) ◽  
pp. 325-339
Author(s):  
R. C. VAN CAENEGEM
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Case Law ◽  
The United States ◽  
European Convention ◽  
Stare Decisis ◽  
The People ◽  
British System ◽  
Anglo American ◽  
The Impact

Politicians are not expected to interfere with the judiciary. Parliament passes laws and the courts interpret and apply them. On the Continent, judicial freedom is restricted by codification, which was avoided in England where greater judicial flexibility survived. In the United States the Restatement of the Law was a move in the direction of codification. Also in that country, judicial review of the constitutionality of the laws gave the judges the power to declare statutes passed by the representatives of the people unconstitutional. No such power exists in England, but the courts have other means of reducing the impact of Acts of Parliament, such as the exclusionary rule and the convention that the lawgiver does not intend to change the common law, which is judge-made case law, governed by the doctrine of precedent. Those traditional elements of the English common law were recently eroded by modernizing trends: the rule of exclusion was given up in favour of the search for the intention of the lawgiver, and the force of stare decisis was reduced. The recent incorporation of the European Convention on Human Rights into British law has introduced a form of judicial review of the laws into the British system.

Constitutional Adjudication and Democracy

1999 ◽  
Vol 33 (2) ◽  
pp. 193-215 ◽  
Author(s):  
Dieter Grimm
Keyword(s):  
Decision Making ◽  
19Th Century ◽  
Judicial Review ◽  
United States Of America ◽  
Constitutional Law ◽  
World Wide ◽  
The United States ◽  
Long Period ◽  
The 19Th Century ◽  
Constitutional Adjudication

Constitutional adjudication is as old as democratic constitutionalism. But for a long period of time, the United States of America remained alone in subjecting democratic decision-making to judicial review. While constitutions had become widely accepted already in the 19th century, it took almost two hundred years until constitutional adjudication has gained world-wide recognition. In the 19th century, only Switzerland entrusted its Supreme Court with competencies in the field of constitutional law, yet, not including review of federal legislation. All other attempts to introduce constitutional adjudication failed. This is also true for Germany where the constitution of 1849 had provided for judicial review in an ample manner. But the constitution adopted by the revolutionary Paulskirchen Assembly did not enter into force because the monarchs refused their consent after the revolution had been put down.

scholarly journals OD DEMOKRACJI PRZEDSTAWICIELSKIEJ DO DEMOKRACJI PRAWNICZEJ: KONSTYTUCJA STANÓW ZJEDNOCZONYCH A EWOLUCJA USTROJOWA PAŃSTWA

2016 ◽  
Vol 11 (3) ◽  
pp. 13
Author(s):  
Zbigniew Lewicki
Keyword(s):  
Judicial Review ◽  
Political System ◽  
The United States ◽  
The Political ◽  
Colonial Rule ◽  
Founding Fathers ◽  
The People ◽  
The Supreme Court ◽  
Elected Representatives ◽  
The U.S

FROM REPRESENTATIVE DEMOCRACY TO JUDICIAL DEMOCRACY: THE CONSTITUTION OF THE UNITED STATES AND THE EVOLUTION OF THE POLITICAL SYSTEM Summary The article discusses the process in which the judiciary branch has claimed and maintains its supremacy over the other two branches by practicing the extra-constitutional process of judicial review. Prior precedences under the British or colonial rule can hardly be claimed as they were established in a markedly different system in which the tripartite division of power was not as pronounced as it is under the U.S. Constitution. The real culprit is the U.S. Congress which refrains from making clear rules in controversial matters, such as abortion. The Supreme Court swiftly moved into the void to the point where the beliefs of nine nominated Justices outweigh the views of over five hundred elected representatives of the people, to wit: the flag burning controversy. While the learned opinions of nine learned and respected specialists should not be dismissed lightly, it is a far cry from the Founding Fathers’ intention if one person’s preferences can sway the nation’s political system, as is the case when the Court is divided between four liberals and four conservatives. However, lawyers are unlikely to give up the power they have usurped over time.

scholarly journals Inequality in the context of economic globalization: the empirical sociological dimension

2020 ◽  
pp. 66-85
Author(s):  
Vitalina Butkaliuk
Keyword(s):  
United States ◽  
Public Goods ◽  
Democratic Party ◽  
Current System ◽  
Economic Globalization ◽  
The Elderly ◽  
The United States ◽  
Modern World ◽  
The People ◽  
The Masses

The article is devoted to the study of the state and dynamics of socio-economic inequality in the modern world in the context of economic globalization. Based on the analysis of foreign and domestic literature, as well as large statistical and sociological information, the author argues that the implementation of neoliberal reforms has become a key factor in increasing inequality both globally and within individual countries, regardless of their level of development. The author pays special attention to public opinion research in the US and Ukraine on social inequality, social justice and the distribution of public goods. By showing that in both the most developed capitalist country, the United States, and in the "transitional" post-Soviet Ukraine, the majority of the population critically evaluates existing systems of distribution of public goods and advocates the transition to more egalitarian models of social development. In the United States, the most critical to the system of distribution of public goods in the country are such groups as the youth, the poorest segment of the people, the sympathizers of the Democratic Party and the liberals. With regard to Ukrainians, was found the connection between assessing the fairness of the current system and age, education, region of residence, and the level of respondents' income. Most critically, it is estimated by the elderly, the respondents with the lowest levels of education, the residents of the South of country and the people with the lowest income. The rise of inequality and, as a consequence, the conflict and tensions in the world, the radicalization and aggravation of the political situation are the key features of the modern neoliberal order. The inability to increase wealth for the majority of the population amid growing wealth of the richest and increasing concentration of wealth may lead to increased discontent among the masses and cause many social upheavals. The inability to increase wealth for the majority of the population amid growing wealth of the richest and increasing concentration of wealth would lead to increased discontent among the masses and cause many social upheavals.

Introduction

2021 ◽  
pp. 1-18
Author(s):  
Jason Frank
Keyword(s):  
United States ◽  
Hong Kong ◽  
Public Transportation ◽  
New Technologies ◽  
The United States ◽  
Democratic Legitimacy ◽  
Representative Government ◽  
Police Violence ◽  
The People ◽  
Elected Representatives

When collective protest develops in the streets and occupied squares, it becomes not simply a demand for democracy addressed to the disputed power but an affirmation of democracy effectively implemented. —Jacques Rancière As another cycle of collective protest reverberated around the globe in recent years, crowds again took to the streets and public squares of cities from Santiago to Beirut, from Hong Kong to Baghdad, claiming their elected representatives do not, in fact, represent them. In the United States, the largest protest movement in its history—the Movement for Black Lives—drew between fifteen to twenty-six million people into the streets of hundreds of different cities and towns, and did so in the middle of a global pandemic’s demand for social distancing. The local grievances which triggered these uprisings vary widely—an increase in the price of public transportation, a tax on a popular messaging service, a revised extradition law, searing examples of racist police violence—but all express dismay and disgust at the economic and political inequalities of the existing system of representative government and a common demand to return political power to the people themselves. “Our government is a government of thugs!” “Chile woke up!” “There are no rioters, only a tyrannical regime!” The figurative space opened up by a widespread crisis of democratic legitimacy once again filled the streets with multitudes banging pots and pans, occupying public buildings and squares, building barricades, and throwing improvised dance parties celebrating the coming fall of the regime. Amid the proliferation of ever-new technologies enabling virtual forms of assembly, political participation, and “preference ...

Judicial review and codification

Legal Studies ◽  
2000 ◽  
Vol 20 (4) ◽  
pp. 517-537 ◽  
Author(s):  
Timothy H. Jones
Keyword(s):  
United States ◽  
Judicial Review ◽  
Separation Of Powers ◽  
The United States ◽  
Democratic Legitimacy ◽  
Administrative Procedure ◽  
Advantages And Disadvantages ◽  
Administrative Action ◽  
Further Development

This article addresses the potential advantages and disadvantages of codifying the grounds of judicial review of administrative action. The four principal legal values associated with codification are described: certainty; clarity; democratic legitimacy; and rationality. The extent to which codification might further these values is considered in the light of two comparative models: the United States Administrative Procedure Act 1946 and the Australian Administrative Decisions (Judicial Review) Act 1977 (Cth). It is concluded that codification offers no solution to the practical and theoretical problems of judicial review. Codification places the content of the principles of judicial review in the hands of politicians. Australian legislation limiting the grounds of review available in migration cases shows the danger to the separation of powers inherent in codification. If it is thought desirable to foster the further development of the principles of judicial review, this can best be achieved by leaving the task to the judiciary.

scholarly journals La Constitución fue norma por ser Pacto Federal

2011 ◽  
pp. 179
Author(s):  
Paloma Biglino Campos
Keyword(s):  
United States ◽  
19Th Century ◽  
Judicial Review ◽  
The United States ◽  
Federal Courts ◽  
Federal Law ◽  
Member States ◽  
Federal States ◽  
Siglo Xix ◽  
The 19Th Century

This article is an attempt to analyze the influence exerted by Federalism on the emergence of the normative idea of a Constitution. To this end, it begins by analyzing the curious way in which the Convention of Philadelphia introduced the reference to the Constitution in art.VI.2 of the fundamental charter of the United States, a precept that was born to ensure the new agreement on unity among states versus their tendency to pursue individual interests. Things were no different in Europe. In fact, the Constitution stops being a programmatic rule in the first federal states to appear on our continent in the 19th century. In these formations, it was enforceable law, at least with regard to the member states, as it was the part of the parameter used by the courts to measure the conformity of the legislation of member states to federal law. The idea of the Constitution as an applicable rule is perfected, on our continent, in the 1920 Austrian Constitution, when the concept of a constitution as «total order» forced the equivalence between the federation’s laws and those of the member states, equally subject to constitutional oversight. The last pages are devoted to the way in which the federal structure, by determining the concept of constitutions, influences the model for judicial review of legislation. In the United States, the superposition of a federation on top of the member states implied a dual structure in which the main topic of discussion was the jurisdiction of the federal courts to supervise the laws enacted by the States, first of all, and by the federation, secondly. The concentrated judicial review emerges, in Europe, in federal states that are the consequence of decentralization processes and, among other factors, of the mistrust caused by the fact that the judiciary is solely in the hands of the federation.Este artículo pretende subrayar la influencia que el federalismo ejerció en la aparición de la idea normativa de constitución. Por ello, comienza analizando la curiosa manera en que la Convención de Filadelfia introdujo la mención a la constitución en el art. VI.2 de la norma fundamental estadounidense, precepto que nació para asegurar el nuevo pacto de unión frente a las tendencias de los estados a perseguir sus intereses particulares. En Europa, las cosas no fueron muy distintas. En efecto, la constitución deja de ser norma programática en los primeros estados federales aparecidos en nuestro continente en el siglo XIX. En estas formaciones, era derecho aplicable, al menos en relación con los estados miembros, ya que encabezaba el parámetro que los tribunales utilizaban para medir la adecuación de las leyes de los estados miembros al derecho federal. La idea de constitución como norma aplicable se perfecciona, en nuestro continente, en Constitución austríaca de 1920, cuando la idea de constitución como «orden total», fuerza a equiparar las leyes de la federación y las de los estados miembros, sometidas en igual medida al control constitucional. En las últimas páginas se trata de la manera en que la estructura federal, al determinar la concepción de constitución, influye en el modelo de control de las leyes. En Estados Unidos, la superposición de la federación sobre los estados miembros implicó una estructura dual en la que el principal tema de discusión fue la competencia de la jurisdicción federal para controlar las leyes de los estados, primero, y de la federación, después. El control de constitucionalidad concentrado aparece, en Europa, en los estados federales que son consecuencia de procesos de descentralización, como consecuencia, entre otros factores, de la desconfianza que suscita el hecho de que el poder judicial quede en manos sólo de la federación.

scholarly journals The (mis)interpretation of the Bible in South Africa: Towards a better hermeneutic

2021 ◽  
Vol 55 (3) ◽  
Author(s):  
Bradley M. Trout
Keyword(s):  
South African ◽  
Democratic Party ◽  
Public Discourse ◽  
The South ◽  
People Of God ◽  
Scriptural Interpretation ◽  
The Bible ◽  
The People ◽  
Biblical Principles ◽  
The Way

The Bible continues to have a prominent place in the South African discourse. Unfortunately, however, it is often poorly interpreted. The purpose of this study was to examine the nature of the misinterpretation of the Bible. We aimed to uncover the specific interpretive methods responsible for this misinterpretation, considered generally in the South African milieu. Specifically, we discussed the role of biblical fundamentalism. Essentially fundamentalism fails to account for the reader’s place in the process of biblical interpretation and so operates under the guise of false objectivity. We then discussed three examples of this phenomenon: the way in which Scripture has been interpreted by the African Christian Democratic Party, Peter Hammond’s view in his Biblical principles for Africa, and the scriptural interpretation of Deuteronomy by Dutch Reformed theologians in the 1930s–1960s. This essay demonstrated that the primary problem with the fundamentalistic method is its failure to account for the reader’s role in the interpretive process. Fundamentalism presents itself in several ways as ‘biblical’ without recognising the problems inherent in such a formulation, especially in the assumption of objectivity. This result illustrated the necessity for a more reader-centred approach to Scripture that takes note of prior ideological commitments. As a result, it is imperative that we embrace a hermeneutic that is firstly ‘critical’, that means willing to interrogate ideological pre-commitments. Secondly, we proposed that the hermeneutic focus on ‘eschatology’, whereby Scripture is considered primarily based on its redemptive trajectory. The emphasis is then placed on the Christ event, especially the resurrection as the culmination of the story. Biblical ethics are then grounded in an understanding of the people of God as the eschatological community. This approach is also termed ‘redemptive-historical’. As one example of such an approach, we discussed N.T. Wright’s Five-act model. In this view, biblical ethics are grounded upon knowing where we find ourselves in the overall drama and what is appropriate within each act. God’s people are to imagine themselves as players in a later stage of the same grand drama of Scripture. This hermeneutic provides, so we argued, a better approach to applying Scripture in the modern context. If we wish to reduce the misinterpretation of Scripture in the South African milieu, we need to identify fundamentalist hermeneutics and continually strive towards a more reader-centred and eschatological approach to its interpretation.Contribution: This article attempted to contribute towards our understanding of the way Scripture is used in public discourse, and it also suggested a way forward to a better interpretation.

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