We are taught that the core of democracy lies in "elections."
Casting a vote to choose the leaders who will represent us, who in turn craft laws in accordance with the will of the people—this is believed to be the sole path to validating the legitimacy of power.
Yet, the institution wielding the most formidable legal power in the Republic of Korea is unexpectedly held by the hands of those to whom we have never given a single vote on a ballot. They are the nine justices of the Constitutional Court. They were not directly chosen by the people, nor do they possess the authority to manufacture laws (legislative power). Even so, they toss laws crafted by the National Assembly through sleepless nights into the wastebasket with a single stroke, and they wield their verdicts as if they were enforceable statutes, effectively dictating new legal guidelines.
Here, the most agonizing paradox of democracy rears its head. The people have never delegated such omnipotent rights to them. Why then are they allowed to swing a law above the law, governing the parameters of our lives?
The Inherent Trap of Political Bias
The reality that constitutional justices are not elected officials inevitably births another suspicion: "If they were not chosen by the people, are they not merely politicians operating at the beck and call of the ruling power that appointed them?"
This suspicion is a 100% reality. Constitutional justices are appointed by the President, elected by the National Assembly, or nominated by the Chief Justice of the Supreme Court. It is an open secret that those holding the power of appointment engage in fierce behind-the-scenes warfare to seat biased individuals who align with their own interests or political values. In essence, individuals tailored to the tastes of the regime don the sacred cloak of the "Constitution" and tip the scales of justice.
To control this bias, humanity devised braking mechanisms: guaranteed tenures and "time-lags." The intent is to guarantee a justice’s tenure to be longer than that of the appointing authority, allowing them to rule independently without looking at the political wind, even after the regime that picked them steps down. It is thanks to this guaranteed status that we see instances of justices boldly turning the blade of unconstitutionality against the core policies of the very regime that appointed them. Yet, even this fails to perfectly erase the fundamental limitation of legitimacy that comes with being an "unelected power."
Judicial Activism: The Unelected Dictators
The most terrifying phenomenon is "Judicial Activism," where judges attempt to pioneer the laws and institutions of an era rather than merely interpreting them.
If members of parliament craft flawed laws or get swayed by populism, the people can drag them down with their own hands in the next election. However, the citizens have no viable method to remove a constitutional justice. When nine elites accountable to no one become intoxicated by public opinion or personal convictions and swing their verdicts like unelected dictators, democracy risks degenerating into a judicial tyranny under the guise of the rule of law.
Why do we condone this precarious system that grants individuals who were never directly given power by the people the right to neutralize the legislative power of the parliament?
A Precarious See-Saw Between a Rampaging Majority and an Arrogant Minority
We left this dangerous monster alive for one reason: because history forced us to witness the even greater terror of how "elected power" can spiral into madness at any moment.
Suppose a President and a parliament, swept into office by an overwhelming majority of the public vote, join forces to pass a law stating, "For the sake of the state and the majority interest, let us confiscate the property of a specific minority group and banish them." Because they are elected and possess legislative power, is their action legitimate? Who will stop a legalized slaughter and plunder executed in the name of the majority?
It is precisely at that moment that we require a "final arbiter independent from politics"—one who will coldly slam on the brakes against the rampage of the majority and declare, "No matter how many votes you obtained from the people, that law is null and void because it infringes upon the most fundamental human rights."
Ultimately, the system of constitutional adjudication does not exist because these nine individuals are perfectly objective or righteous. Caught between two catastrophic perils—"the rampage of elected power (the tyranny of the majority)" and "the arrogance of unelected power (the tyranny of the judiciary)"—this system remains the most precarious and solemn compromise that humanity has managed to carve out through blood.
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