Judicial Independence and Accountability in an Age of Unconstitutional Constitutional Amendments

Abstract:     
Selection of American judges is one of the battle fields in the contemporary culture war, primarily due to judicial involvement in contentious issues such as abortion, pornography, the death penalty, racial discrimination, the role of religion in public life, and the definition of marriage. As a result, the organized bar and many leaders in the judiciary gravely warn that judicial independence is “in jeopardy,” while social conservatives caution that judicial accountability is greatly diminished or non-existent and the “end of democracy” has arrived or is fast approaching.

The relative value and relationship (if any) of judicial independence and accountability have been debated since the inception of this nation. While this is a profoundly interesting and important debate, it is not the purpose of this article to join that debate directly. The aim of this article is more modest – to explore the impact of an increasingly common legal argument – that there can be an “unconstitutional constitutional amendment” – on judicial independence and accountability.

The first section of this article provides an overview of the different processes for amending a constitution. The second section of this article discusses procedural review of constitutional amendments, while substantive review is examined in the third section. Both of these sections explore the issues related to judicial review in particular. This article concludes that judicial review of the procedural regularity of the amendment process is appropriate, but that substantive review should be limited to post-passage cases and rarely undertaken.

Number of Pages in PDF File: 25

Keywords: Constitution, constitutional law, constitutional amendment, judicial independence, judicial accountability, culture war,

Accepted Paper Series