Posted by Ilya Somin:
Justice Ginsburg, the Holocaust, and Judicial Review:
http://volokh.com/archives/archive_2009_04_12-2009_04_18.shtml#1239658719
In [1]a recent speech justifying citation of foreign law, Justice Ruth
Bader Ginsburg claims that judicial review spread in Europe because of
the experience of the Holocaust:
She also offered a theory about why after World War II nations
around the world started to create constitutional courts with the
power to strike down legislation as the United States Supreme Court
has.
"What happened in Europe was the Holocaust," she said, "and people
came to see that popularly elected representatives could not always
be trusted to preserve the system's most basic values."
Ginsburg's argument is extremely dubious. As[2] co-blogger David
Bernstein points out, there is little if any evidence that the
Holocaust influenced the adoption of judicial review in Europe. Most
European democracies already had judicial review even before World War
II. and the Holocaust was not carried out by "popularly elected
representatives," but by a Nazi dictatorship. German public opinion in
the 1930s was highly anti-Semitic; but there is no reason to believe
that a Holocaust would have occurred absent the rise of a
nondemocratic totalitarian state. Indeed, German Jews enjoyed legal
equality under the democratic government of the Weimar Republic
(though there was of course a great deal of informal public and
private discrimination against them). Democracy has many serious
flaws, some of which I have analyzed in my own scholarship. Indeed, I
am probably much more skeptical about democracy overall than Justice
Ginsburg is. But no democratic government has ever committed mass
murder or genocide against its own citizens.
Perhaps Justice Ginsburg merely meant to suggest that judicial review
was needed to prevent democracy from being replaced by a dictatorship,
which in turn could go on to commit atrocities similar to the
Holocaust. However, the Weimar Republic[3] actually did have judicial
review. Yet German judges did little to prevent the rise of the Nazis
to power. Indeed, many of the judges supported parts of the Nazi
agenda and collaborated with the Nazi regime when it came to power.
This doesn't prove that robust judicial review is undesirable. Indeed,
I think strong judicial review is, overall, a beneficial institution.
But it does suggest that the rationale for judicial review can't be
based on its supposed ability to prevent future Holocausts.
References
1. http://www.nytimes.com/2009/04/12/us/12ginsburg.html?_r=2&em
2. http://volokh.com/archives/archive_2009_04_12-2009_04_18.shtml#1239605727
3.
http://books.google.com/books?id=sHZfkgxtoZQC&pg=PA8&lpg=PA8&dq=judicial+review+in+the+weimar+republic&source=bl&ots=BmUb4CKtf0&sig=uKzICrnRgReTXMSIdcy9A321OIA&hl=en&ei=26vjSdt3ke-VB4a5zeAO&sa=X&oi=book_result&ct=result&resnum=7#PPA6,M1
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