Dee Tagliavia 2017-09-23 02:45:35
Judicial Review, Its Conduct, and Importance Why is the proper conduct of judicial review so vital? “Who cares?” asks author Tara Smith in Judicial Review in an Objective Legal System (Cambridge University Press, 2015). Smith, a philosophy professor at the University of Texas, examines judicial review as it has been practiced in this country with good cause. Government enjoys the exclusive authority to compel how we act, she argues, and “[i]nsofar as judges articulate what the laws mean, they control how government power is used.” Smith critiques various theories of review and suggests what she believes instead should be the guideposts for review. The first theory Smith subjects to examination is originalism, which prescribes review based on the meaning of legal text at the time of a law’s enactment. Textualism, a variant of originalism, holds that legal text should be interpreted in accordance with the fair meaning of the words of the text. Both styles of review are designed to forestall judicial activism. However, Smith maintains that text must be contextually interpreted. For example, if text is to stand for actual phenomena in cases such as those requiring a determination of which activities constitute speech or the establishment of religion, review must “proceed on the basis of the best knowledge at the present time.” Smith also finds that perfectionism falls short as a guiding tool for judicial review. Perfectionism, or living constitutionalism, reflects a belief that courts, in interpreting law, should be guided by a continuous desire to improve or perfect it. According to former justice and jurist Benjamin Nathan Cardozo, the Constitution should “have a content and a significance that vary from age to age.” Smith contends that, while perfectionism laudably recognizes the role of philosophy in shaping a legal system and of context in establishing the meaning of the text, it replaces the Constitution as the “bedrock” of legal authority with the subjective ideals of those reviewing the law. Lastly, Smith tackles the minimalist school of thought, which maintains that judges should narrowly restrict review, avoiding broad principles and rulings with expansive impact. Minimalism, Smith says, “is a jurisprudence of deference to existing law, to previous courts, to the will of the people.” Smith finds fault with this approach for several reasons, the most pronounced of which is minimalism’s failure to provide substantive guidance. Moreover, what the law is subsumes a judgment about its scope. “We have no reason to suppose,” she states, “that the scope of laws will always be narrow….” Having critiqued various theories of judicial review, Smith outlines her own approach which is grounded in what she identifies to be the purpose of government—namely, the protection of individual liberty. The Constitution was designed to achieve that objective. Thus, the role of the judiciary is to be mindful of the animating principles of the Constitution in applying the law. In Smith’s words the “role of judicial review is to ensure that the law of the land be respected as the law of the land—that it actually govern.” To perform this function, judges must understand the essentials of our legal system and possess the facility and courage to apply the law objectively to particular instances by the meticulous use of logic. Smith’s treatise is a careful and well-articulated analysis. She confesses that it comes without detailed instructions, maintaining that contextual application of the law defies anything approaching step-by-step guidance. Accepting that premise, nonetheless, both a further elucidation of her understanding of seminal constitutional principles and an example of the application of those principles to a specific case would have been helpful. Even so, hopefully, her analysis will find its way into the hands of the legal community at large, promoting a recommitment to the essential liberating principles of American law. DEE TAGLIAVIA formerly practiced tax law, assisting clients in both firm and corporate environments, and was an adjunct professor of law at George Mason University where she taught legal research and writing. She is currently pursuing an interest in legal history and is an active member of the Dallas Bar Association’s Legal History Discussion Group. She is a member of the State Bar of Texas and the District of Columbia Bar. She received her J.D. from George Washington University School of Law and her Master of Law in Taxation from Georgetown University School of Law.
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