. Read the article below and prepare answers for the questions that
follow it, contrasting constitutional review in Korea and the United
States.
Questions about South Korea’s Constitutional Court
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?
