medium · LSAT Reading Comprehension
Passage A: Judicial review is a vital component of a constitutional democracy, as it allows the courts to strike down laws that violate the fundamental rights of citizens. Because the majority can sometimes be moved by passion or prejudice to pass oppressive legislation, there must be an independent judiciary that is insulated from political pressure to uphold the Constitution. The power of the court to act as a 'check' on the legislative branch ensures that the rights of the minority are protected against the 'tyranny of the majority.' This ensures that the government remains one of laws, not of men. Passage B: The power of judicial review is inherently undemocratic, as it allows unelected, life-tenured judges to override the will of the people as expressed through their elected representatives. When courts strike down popular legislation, they are essentially acting as a super-legislature, imposing their own policy preferences under the guise of constitutional interpretation. This practice discourages political engagement and shifts the focus of social change from the ballot box to the courtroom. A more democratic approach would be to trust the people and their representatives to resolve constitutional questions through the political process.
The author of Passage B would most likely respond to Passage A's claim about protecting minorities by arguing that:
- Rights and social disputes are most legitimately worked out through elected representatives rather than by unelected courts.
- The Constitution was meant to function as a body of optional guidance rather than binding law.
- In most contemporary democracies it is minority factions, not majorities, that actually command the legislature.
- Only judges are capable of genuinely grasping the interests of the poor and marginalized.
- Courts should be stripped of any authority whatsoever to interpret the Constitution.
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