wellspring/08-courts/08-03-judicial-review.md

# Wellspring: Judicial review:

"_It is emphatically the province and duty of the judicial department to say what the law is._" -- SCOTUS, Marbury v. Madison.

This document defines a specially composed jury which is to be used in all judicial review cases; as well as whatever other special constraints as are required of the judicial review process.

## Process:

> [Apologia]: There may be a need for special process modifications since determining the facts will ultimately consist of determining "the original understanding of the constitution at the time it was adopted".

## Burden of proof:

> [Apologia]: Unsure what this should be, whether balance of probabilities or what. Should we make it such that laws are presumed unconstitutional until proven otherwise?

## Jury:

The jury shall be a composite of three classes of individual as outlined below. The number of the jurors of each class (except the Philosoper jurors) shall be legislatively defined. The total number of non-philosopher jurors shall be perfectly divisible by three.

There shall be no limit on the number of philosopher jurors who may sit on the jury of any particular judicial review case. Philosopher jurors shall be permitted to join the jury in any number of judicial review cases they express an interest in joining, and judicial review cases shall be scheduled to ensure that said Philosopher jurors may be accomodated (except where said philosopher juror falls ill, or is otherwise unable to be reasonably accomodated).

The legislature shall have the power to grant such protections and monetary compensation to an ordinary or originalist juror as are required within reason to enable that juror to attend trial.

`WS` recommends a starting composition of 6 ordinary jurors and 6 originalist jurors.

### Ordinary Jurors:

Ordinary jurors are selected from among the resident populace to represent the sense of natural law which beats in the breast of the common man in line with the traditional intentions of the common law.

#### Eligibility criteria:

The standard legislatively defined eligibility criteria for common law jurors shall apply with the following stipulations:

* The jurors shall not be past or present employees of any government, whether a `WS` government or otherwise.
* The jurors shall meet the criteria required to vote in the constitutional amendment process.

#### Voir Dire:

The standard legislatively defined voir dire process shall apply to ordinary jurors.

Both sides of the advocacy shall have the right to strike a candidate on grounds of opinions and prejudices which oppose Originalism.

### Originalist Jurors:

Originalist jurors are selected from among the ranks of individuals who either currently hold office as a `WS` magistrate or have held such office in the past; and who have a strong record of originalist opinions and rulings. These jurors are intended to represent the spirit of originalism.

Magistrates who no longer hold office must not have left office in disgrace or due to abuse of office.

Upon being sworn into office, all magistrates who serve in the `WS` court system shall take an oath to make such efforts and bear such extra inconveniences as are necessary to serve as an originalist juror when called upon within reason. Such efforts and inconveniences may go beyond the norm for ordinary jurors.

#### Criteria:

#### Voir Dire:

Both sides of the advocacy shall have the right to strike a candidate on grounds of non-originalist opinions and rulings. 

### Philosopher Jurors:

The philosopher jurors are intended to represent mastery of Enlightenment philosophy, _as defined in the [Philosopher Jurors](./08-04-philosopher-jurors.md) section of this constitution_.

#### Criteria:

Any individual holding a current title of philosopher juror shall be permitted to join the body of philosopher jurors sitting in on a judicial review case. 

#### Voir Dire:

No voir dire process shall be imposed on a philosopher juror.