quinta-feira, 13 de agosto de 2009

Judicial Review

The judiciary has had a very important actuation along the history. This has happened because the decision about a controversy question is faster than the process of discussion the law. Thus, don’t is absurd to consider the judiciary as the box reverberation of the society. Record that one effective weapon to exercise this function is the judicial review.
The first examples of written constitutions come from the United States also gave the world an institution that has become a fundamental feature of many contempory constitutional systems: judicia review. The power to invalidate legislation confliting with the provisions of a rigid constituition has been most frequentlym though not invariably, entrusted to the judiciary. It was in the United States that the idea of making the judiciary the guardian of the constitution first look definitive shape. Judicial review – the power of courts to determine the constitutional validity of legislation or of actions taken by executive or governament agencies – is intended to produce impartial judgmentess that are supported by traditional and tested rules of legal interpretation.
Despiste its overwhelming importance, judicial review is not explicity mentioned un the U.S. Constitution; indeed, it’s itself a product of judicial construction. I Malbury vs. Madison (1803), the Supreme Court ruled that, because the Constitution clearly satates that it’s the supreme law of the land and because it’s the province of the judiciary to uphold the law, the courts must declare satates laws and even actes of Congress null and void when they are inconstistent with a provision of the Constitution. The same principle holds with regard of executive actions contrary to the Constitution. Supreme Court pronuncements on questions of constitutionality are final and binding for all other courts and governamental authorities, whether satate or federal.
Although the U.S. courts are the guardians of the Constitution, they are not bound to consider all the provisions of the Constitution justiciable. Under the doctrine os “political questions” the Supreme Court has refused at times to apply standarts prescribed by deducible from the Constitution the issues that it believed could be better decided by political branches of governament.
On the other hand, the polical-question dectrine has not prevented the Supreme Court from asserting its jurisdiction in cases that are politicaly sensitive. Thus, in United States vc. Nixon (1974), the court ruled that President Richard Nixon was required to turn over to federal authorities the tape recordings that confirmed his complicity in the Watergate scandal.
From 1789 through the Civil War era, the Supreme Court was a crucial participant in nation bulding, its decisions reinforcing the newly born structures of the federal system. The court’s rulings estabilished judicial supremacy in constitutional interpretation, gave force to the national supremacy clause of Active VI of the Constitution – which declared the Constitution the supreme law of the United States – and laid the foundation for the power to regulate intersate commerce, in contrast, during the decades of industrialization and economic growth that followed the Civil War, the coirt was very skeptical of attempts at economic regulation by the federal governament. Indeed, until the Great Depression spawned the New Deal legislation of President Franklin D. Roosevelt, the court often ruled that many areas of economic activity were matters eclusively for state legislation or not subject to governament regulation al all. After 1937, however, the court lifted the obstacles it had previously erected to federal intervention in economic and social transactions of the country. Whtin a few years the Supreme Court estabilished that Congress can make laws with resepct to practically all commercial matters of nations concern.
In the area of separation of federal powers, the court gradually came to support a substantial transfer of powers to executive and to administrative angencies. Because Article I, Section I of the Constitution confers all legislative powers upon Congress, the court at first ruled such powers can’t be delegated by Congress to executive. Nevertheless, the court has set important limits on the powers of the president. It has ruled , for example, that the president don’t have an “inherent” power to seize steel mills in time of war (Youngstow Sheet & Tube Co. vs Sawyer, 1952) and that the prerogative of the president to keep confidential records secrete must yield to the need of the judiciary to enforce criminal justice if the secrets isn’t stricty related to military or diplomatic matters (United States vs. Nixon, 1974).
Until the New Deal, the court used the provisions of the Constitution concerning individual rights and freedoms primarily to protect property and economic liberties angainst state and federal efforts to interfere with the market. Thus, it ofeten used the due process clause of the Fifth and Fourteenth amendments (no persal shall be deprived of “life, liberty, or property, without due process law”) to invalidate social legislation, such as laws stabilishing minimum working hours. In contrast, the cort’s agenda is now dominated by litigation directy rainsing questions involving civil and political rights and freendoms, as well individual equality before the law. Due proess claims focus primarily on procedural rights in criminal and administrative areas.
Through more than centuries of juducial review, the U.S. Supreme Court typicaly has supported the values of the prevailing political ideology against challenges from the sates or other branches of the federal governament. Indeed, it has often been said that the court conducts judicial review by following election returns and public opinion polls. Although there is consderable insight in this observations, it’s not true that the court simply tailors its decisions to comport with the political views of the electoral majority. At times, as in the early 20th century, the court’s view of economic legislation was out of step with the views of electorate, the other federal branches, and some states. In 1950s and early ‘60s the court also made decisions contrary to public opinion and governamet policy regarding political and racial equality and other civil, political, ando procedural rights.
The expansion of judicial review is in fact part of broad judicialization of policts around the world: a trend toward relying on judges to make policy decisions in areas that were previosly whitin the pruview of other governament institutions. The consequences of judicial review in the United States have been enormous. From the late 1930s through the 1960s, a lliberal Supreme Court used its powers of judicial review to broaden democratic participation in governament and to expand the rights of citizens, especialy those of minorities and the accused. Begining in the 1970s, a more conservative Supreme Court resisted the expansion of rights in many areas and limited the effects of previosly estabilished rights in others. Nevertheless, it did not, by and large, overturn the panoply of rigths created by its predecesssor.
In Europe and elsewhere judicial review has been used to advance the same democratic values that inspired the decisions of the U.S. Supreme Court from late 1930s. European constititutional courts, in particular, have modified the legal systems of their countries here and there by interpreting the rights enumerated in their respective constitutions in ways that bear comparsion with the American experience of judicial review. Nevertheless, European courts have tended to be more cautions than the U.S. Supreme Court in expandig the freedoms of the individual at the experience of other competing values.
The U.S. Supreme Court has found (Roe vs. Wade, 1973; Planned Parenthood of Sourtheastern Pennsylvania vs. Casey, 1992) that a woman’s constitutional right to privacy entitles her to obtain an abortion freely, prior to the point at which the fetus attains viability. No European constitutional court has gone this far in recognizing a freedom to obtain an abortion. The Italian court held in 1975 that voluntary abortions can’t be punished if performed for the purpose os preserving the life and health – either physical or emotoinal – of the woman. The Austrian court (1974) and the French Constitutional Council (1975), without addressing the problem of a woman’s constitutional right to interrupt pregnancy, have validated satutes that provide in liberal terms ofr the possibility of voluntary abortions. In a unique ruling in 1975, the Federal Constitutional Corurt of West Germany held that the West German constitution, by declaring the life of persons inviolable, implicity protects the life of fetuses and that an adequate protection is afforded by the state only if voluntary abortion is made a crime by law. The law of East Germany was much more permissive, and, a few years after ther reunification of the two German states (1990), the Constitutional Court, while reaffirming the principle that the fetus must be protected, held that such protection must be achieved not through punishment by through couseling and other measyres aimed at influencing the woman to decide freely to carry her pregnancy to term.
The separation of church and state, as provied for by the First Amendment the U.S. Constitution, has led the U.S. Supreme Court to rule in a series of cases that officially sanctioned Bible reading, prayer, and religious instruction in public schools are unconstitutional. Separation of church and state, although contemplated in principle also by European constitutions is sometimes tempered by constitutional provisions making accords between church and state possible in matters of commom interest. No European court has ruled that accords giving students the oportunitty to attend religious courses in public schools ciolate the principle of religious freedom or the principle of the equality of all citizens before the law.
Although courts in the United States can be asked to review the lawfulness of administrative actions, the Supreme Court is sitll reluctant to estabilish as a matter of constitutional due process that citzens are always entitled to sue in court in order to have administrative decisions se aside if contrary to ordinary substantive or procedural rules. The Italian and German constitutions explicitly state the principle and admit no exception, and the courts of both countries carefully see to it that the principle is respected and that the principle is respected and that citizens are not deprived of their day in court, even if the other party is the administrative agency.
It’s true that European court thus far have not openly defied the political powers of the sate in the way the U.S. Supreme Court has sometimes done. Even when the European court have somehow challenged such powers by annulling laws that were supposedly of special interest to them, the conflict has not really been acute. But the greater prudence of European courts is not difficult to explain, It’s the result of many factors, prominent among which are the facts that theirs legitimation as independent and active agencies whitin the political system is recent and the tradition of judicial review dos not yet have the firm roots it possesses in the United States.
In Europe judicial review has transcended of the state. In actions reminescent of the nation-building efforts of the early U.S. Supreme Court, the European Court Of Justice (ECJ) has “constitutionalized” the various EU treaties, estabilishing their superiority to national laws and its right to exercise judicial review over the compliance of national laws – incluing national constitutions – with provisions of the treaties. Because the EU has been primarily an economic union since its interception in the 1950s as the European Coal and Steel Community, judicial review by the ECJ has focused an enconomic rights and relations in member countries. Nevertheless, the ECJ has begun to develop, through judicial review, rights that go beyond the economic sphere and that approach those addressed by the European Covention on Human Rights (1950), which had been ratified by some 45 countries by early 21st century. As a consequence, European law is now subject to judicial review on human rights matters by the European Commission on Human Rights and the European Court of Human Rights. Besides garanting a remedy in a pending case, the European Court of Human Rights also may find statutory and other national laws contrary to the provisions of the convention. If it does so, the country concerned is obligated to adapt its legal rules to the principles stated by the court.
Thus, the idea of the rights of the individual, after having contributed three centuries ago tho the birth of modern constitutional law, has now become the mainspring of another incipient, promising experience: judicial review with transnational dimensions.

Source: Constitutional Law – Encyclopaedia Britannica. 2009. By Giovanni Bognetti. Aviable in http://www.britannica.com/EBchencked/134322/constitutional-law. Acessed in 07/31/2009.

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