Marbury doesn’t get the commission. In a unanimous decision, written by Justice Marshall, the Court stated that Marbury, indeed, had a right to his commission. But, more importantly, the Judiciary Act of 1789 was unconstitutional. In Marshall's opinion, Congress could not give the Supreme Court the power to issue an order granting Marbury his commission. Only the Constitution could, and the document said nothing about the Supreme Court having the power to issue such an order.
Judicial Activism is a concept where judges should interpret laws loosely, using their power to promote their preferred social and political goals. This includes the willingness or tendency to overturn existing precedent, inject one’s views into decisions, issue broad rulings with wide implications, and strike down laws created by elected legislatures. The Supreme Court is considered very strong in the notion of Judicial Activism, and essentially sets precedents for future cases. Judicial restraint, on the other hand, is where legislators, not judges, make laws. Judges base their judicial decisions on the concept of stare decisis, which deals with the court’s obligation to honor previous judiciary decisions.
Even a quick scan of their speeches and correspondences one can find many allusions to God. The Founders understood that theocracy was tyranny, but they did not feel they could or should try to banish religion from public life altogether. George Washington, the first President of the United States, improvised “So help me, God” at the end of the first presidential oath and kissed the Bible on which he had sworn it. This act itself would be a violation of church and state according to the interpretation by the ACLU. According to "The University Of Oklahoma College Of Law" (2009.)
It’s to prohibit a standing army in peacetime, except with the consent of parliament; it also included guarantees as the right to a fair trial and freedom; No excessive bail; no cruel or unusual punishment. Our nation has built on, changed and added to the idea and institutions from England. Albany Plan In 1754 the British board of trade called a meeting of seven of the northern colonies at Albany; Connecticut, Maryland, masscishusetts, New Hampshire, Pennsylvania, and Rhoad Island. The problems of the meeting were to discuss the problem of the colonial trade and danger of attacks by the French and their Native American allies. Ben Franklin offered what cam to be known at the, Albany Plan of Unions.
Discuss the extent to which judges do create and develop the law. Numerous different judges have different views on to what extent judges have creativity within the legal system, such as Lord Simons who believed he judges job is to administer justice according to legislation made my parliament and in common law old principles should be applied to new circumstances, therefore his view is that judges should not be creative, as it isn’t there job. On the contrary Lord Radcliffe believed that judges do create law, however felt it should be on the quiet, so the public don’t lose respect for the judiciary and legal system. Finally Lord Devlin opposed the overruling of the supreme court, as all lower courts are bound to it and that it would turn them into “undisguised legislators” which is the job of parliament, not of the judiciary. The traditional view of the law making process is that parliament makes the law though acts of parliament, as they are democratically elected to make law, whereas judges aren’t so they merely apply it in court to the cases presented to them.
Madison vs Marbury Outgoing President John Adams had issued William Marbury a commission as justice of the peace, but the new Secretary of State, James Madison, refused to deliver it. Marbury then sued to obtain it. With his decision in Marbury v. Madison, Chief Justice John Marshall established the principle of judicial review, an important addition to the system of “checks and balances” created to prevent any one branch of the Federal Government from becoming too powerful. The document shown here bears the marks of the Capitol fire of 1898. “A Law repugnant to the Constitution is void.” With these words written by Chief Justice Marshall, the Supreme Court for the first time declared unconstitutional a law passed by Congress and signed by the President.
b. Judicial activism arguably subverts past precedent and perverts legislative intent (under a separation of powers analysis) through legal artifices, where judges wield excessive interpretive latitude. c. Activist judges, exercise their judicial discretion contrary to their principals (i.e., as agents for legislators in applying the law) in favor of their principles (i.e., as agents for social policy considerations). d. judges can only legitimately discover clear answers in the text agreed to by the framers of the Constitution or the intent of those framers, e. judges become free to impose their political preferences in the guise of constitutional adjudication; f. they should only decide what is necessary to resolve a dispute between the two parties to a dispute g. Positively, judicial activism may be regarded as legal adaptation to social change by evolving principles drawn from constitutional text and precedent and applying core constitutional values
A lot of magistrates go beyond the constitution and statutes words and use their own political and personal thoughts. Judicial Restraint is the complete opposite of Judicial Activism. The judges should not introduce or instill their own personal or political beliefs into the law. The power and decision of the judges on a verdict should be strictly follow the law and US Constitution. 2.
This is known as the principle of stare decisis, which is translated as ‘let the decision stand’. When a court makes a decision in a case, then any courts which are of equal or lower status to that court must follow the previous decision if the case before it is similar to that earlier case. Not all details from preceding cases would be binding, only the ratio decidendi is binding. Ratio decidendi is the principle of law on which the decision is based. On the other hand, obiter dictum is not binding, which is thing said “by the way” and is not strictly necessary for the
Judicial Activism vs. Judicial Restraint When one begins to discuss the relationship between judicial activism and judicial restraint, the individual must understand that these to ideologies are extremely different and are located at the opposite ends of the spectrum when considering the issue of what the Constitution deems is the proper interpretation of that of a Supreme Court Justice. According to the “Government in America” textbook judicial activism can be best described as, a judicial philosophy in which judges make bold decisions, even charting new constitutional ground. While judicial restraint can be best defined as, a judicial philosophy in which judges play minimal policy making roles, leaving that duty strictly to the legislatures. As anyone can gather these philosophies are in direct correlation with whether a judge is a an advocate of “loose construction” or if he/she is a supporter of the “textualist” theory.