Statutes are created when original court cases are heard and ruled upon. Case law is created by rulings that are a result of examining statutes. Case law can either uphold the original statute or strike it down. Case law turns out to be an interpretation, or a “second look” at statutes, determining whether or not they uphold the U.S. Constitution. It seems to me that statutes can be either struck down after interpretation or continue to be enforced.
The Supreme Court is made up of many justices that have beliefs in two different judicial philosophies. These two philosophies are that of judicial activism and strict constructionism. These philosophies differ quite a bit from one another, but they both work toward the same main goal. Both philosophies play a part in court cases, mainly when it comes to deciding on a final ruling or holding. Judicial activism is a judicial philosophy that states that a court has the right to, and should go beyond what is stated in the Constitution about an issue that is being brought up and look towards “broader” suggestions of the impending decision on said issue.
Judicial review is the right, or duty, the court has to review the constitutionality of legislation and/or actions taken by the executive branch. The court has the right to choose its cases, but these are brought before them not sought after by the court. What is the separation of powers? This is a form of checks and balances between the executive, legislative, and judicial branches of government. They are in place so as to contain the power of any one branch attempting to overstep its authority and act in a tyrannical matter.
For example, the ever-changing law on how discrimination went from sanctioning segregation to dissolving segregation illustrates how adaptable common law is. This law also derives its basis from these court proceedings called precedents to guide cases based on past rulings. The one disadvantage of common law is how cases will surmise. As Rogers (2012) attests, “even the best judicial minds often disagree, based at least in part on their judicial philosophy and political ideology” (Section 1.1). Depending on each of the judge’s beliefs, cases can go in any direction from their analysis.
The power of the Supreme Court to declare laws unconstitutional leads some people to assume that the judicial branch will be superior to the legislative branch. Hamilton examines this argument, starting with the fact that only the constitution is fundamental law. To argue that the constitution is not superior to the laws suggest that the representative of the people are superior to the people and that the constitution is inferior to the government it gave birth to. The courts are the arbiters between the legislative branch and the people; the courts are to interpret the laws and prevent the legislative branch from exceeding the powers granted to it. The courts must not only place the constitution higher than the laws passed by congress, they must also place the intentions of the people ahead of the intentions of their representatives.
Marshall studied the case in a manner that helped to create the Judicial Review, which allows congress to study the constitutionality of a law. Marshall stated that Marbury is correct in the fact that he is deserving of an appointment, yet the Judicial Act of 1789 is unconstitutional so the court can't give him an appointment. In this case Marshall stated the powers given to the Supreme Court in the Constitution. By using the Marbury v. Madison case, Marhsall was able to create the Judicial Review which gave more power to Federal government, and thus helping his ideas as a federalists. John Marshall also used the powers of Congress and the relationship between federal and state authorities to end a dispute between national and state law regarding banks—McCulloch v. Maryland in 1819.This time was during the Era of Good Feelings as James Monroe was president.
The opinion of the court, announced on December 14, 1964, was delivered by Justice Tom C. Clark, with concurring opinions by Justice Arthur Goldberg, Justice Hugo Black, and Justice William O. Douglas. The U.S. Supreme Court held that Congress acted well within its jurisdiction of the Commerce Clause in passing the Civil Rights Act of 1964, thereby upholding the act's Title II in question. While it might have been possible for Congress to pursue other methods for abolishing racial discrimination, the way in which Congress did so, according to the Court, was perfectly valid. In response, the United States countered that the restrictions requiring adequate accommodation for black Americans were unquestionably related to interstate travel, and that Congress, under the Constitution's Commerce Clause, certainly had the power to address such a matter in law. It further argued that the Fifth Amendment does not forbid reasonable regulation of interstate commerce, and that such incidental damage did not constitute the "taking" of property without just compensation or due process of
The reason that they are not today is because of popular sovereignty. He argued that each state has the right to determine whether or not they shall be a free or slave state. The federal government does not have or deserve the right to restrict slavery. If popular sovereignty were in action, then perhaps all of the states would eventually abolish slavery as the other states before them had. Douglas reaffirms that slavery is mentioned in the constitution; which means that the act of slavery is protected in the constitution.
Sample multiple-choice questions for the English Legal System module for LLB open learning 1. Which of the statements below most accurately reflects the constitutional position between the legislature and the judiciary: a) Parliament encourages the judiciary to make law through the process of statutory interpretation because it does not have enough parliamentary time to enact laws itself. b) Parliament is the supreme lawmaking body and the role of the judiciary is to interpret and apply law made by Parliament. c) The judiciary considers itself a primary lawmaking body equal to Parliament. d) It is the role of the judiciary, when interpreting statutes, to fill in the gaps in the statutes.
Question 2 Although the doctrine of precedent allows some flexibility, it fundamentally requires judges to respect the hierarchy of the courts . Discuss The doctrine of binding precedent or stare decisis, lies at the heart of the English legal system. In essence the doctrine refers to facts that within the hierarchical structure of the English Court, a decision of the highest court will be binding on a court lower. When a court makes a decision in a case, any court which is of equal or lower status to that court must follow that previous decision if the case before them is similar to that earlier case. Moreover, the doctrine requires that like cases should be treated alike in the interests of consistency and certainty of the law as well as a fairly rigid hierarchy of courts.