Constitutional Review
Order Instructions:
Read the article below and prepare answers for the questions that follow it, contrasting constitutional review in Korea and the United States.
When South Korea’s authoritarian regime collapsed in 1987 after three decades, the victorious political forces rushed to transform their country into a liberal constitutional democracy. The Constitution was quickly revised, and in the process an unfamiliar new institution was created: the Korean Constitutional Court – a tribunal composed of judges with the power to overturn legislative enactments and executive orders if they were found to be inconsistent with the highest law in the country, the Constitution.
The Korean Constitutional Court is outside of the hierarchical system of the ordinary courts, which consist of the Korean Supreme Court and the lower courts. The Korean Supreme Court hears appeals from judgments by the Appellate Courts. In contrast, the Korean Constitutional Court exclusively exercises constitutional review of statutes. Ordinary courts are barred from so doing, though they may refer constitutional questions to the Constitutional Court.
The rationales for granting a special court the exclusive power of judicial review are as follows. First, it strengthens the independence of the ordinary courts by taking the constitutional review of statutes away from them, so that they can be free from political influence by lawmakers. Second, the special court’s efficiency and expediency secures effective protection of human rights and the Constitution because the power of judicial review is concentrated with an independent court and exercised under a unitary procedure.
Unexpectedly, since its creation in 1988, the Constitutional Court has successfully introduced into the political system a new dimension of constitutional review, and has substantially helped the democratic transition in South Korea. Nevertheless, the Constitutional Court has often aroused resentment and opposition from powerful political elements in society. It has frequently had to say no to the legislature, the executive branch, or powerful private entities in its decisions. A very large proportion of the high- profile cases brought to the Constitutional Court have involved intense political controversies, which grew out of power struggles between opposing political forces.
The dominant characterization of a court as a legal institution leads to a general belief in judicial objectivity and neutrality, which is derived from the doctrine of separation of powers, and which makes it wrong for judges to let their value preferences influence judicial deliberations. But there is an opposing perspective that in the course of settling disputes in accordance with existing law, courts often have no choice but to make new rules. It is this policymaking function, much more than dispute resolution, which places the judiciary at the center of controversy.
Source: Cha Dong-wook, “The Constitutional Court: Political or Legal?,” The Korea Herald, (February 1, 2008).
Questions:
a. Traditional theories of judicial review hold that neutral or principled grounds are the only legitimate bases for judicial decisions and reject political motives in judicial decision-making. Do you believe this is true? Do you see principled v. political motives in important U.S. Supreme Court constitutional decisions which overturn laws passed by legislatures (such as restrictions on gun ownership, or marijuana use)?
b. Interestingly, those behind high-profile cases brought to the court are often those who seek political agendas. In Korea, they defer to the Korean Constitutional Court when a political deadlock is reached (and they were unwilling or unable to settle contentious public disputes in the legislature). Politicians may invite judicial intervention deliberately to avoid public criticism of their incapability of action and to divert responsibility to the Court. Do you think this is true in the United States? If so, can you provide a specific example?
c. When people cannot get decisive action from their political leaders, they are very likely to turn to courts and judges instead. That is, when any political group cannot gain electoral support enough to be a dominant ruling party or coalition, the court becomes perceived as the most reliable civil institution in the country. In controversial cases, such as gun ownership rights or marijuana use in the U.S., do you see similarities or differences from this trend occurring?
d. Judicial review is a double-edged sword. If exercised courageously, but prudently, to defend the rights of those politically and economically disadvantaged or hold the line against abuses of power. On the other hand, judicial review can easily become a formidable instrument for legitimating the interests of existing political and economic elites. Can you provide examples of cases where the U.S. Supreme Court, like the court in Korea, attempted to walk the line between government power and the rights of individuals without that power?
