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.
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.
As such, the Constitution underlies both the positive and negative functions of the separation of powers. For without some idea of what the branches' duties are, it is impossible to know when and how to defend their rights and their independence. This argument is not disproved by subsequent developments in American politics, in particular the rise of political parties. It is true that the Constitution of 1787 had to be amended to accommodate the practice of presidential and vice presidential candidates running for office on the same party ticket. The Twelfth Amendment, ratified in 1804, changed the method of voting in the Electoral College by requiring the electors to cast separate ballots for President and Vice President.
Judicial Activism vs. Judicial Restraint Judicial restraint is a doctrine which encourages the judiciary to adhere closely to the wording of the law, be mindful of precedent, and should defer to decisions made by legislatures. In other words, it is a doctrine that urges judges to refrain from incorporating their own philosophies or personal preferences into the law in order to avoid misconstruction of the law. This is based on the concept that judges are to apply the law rather than determine it. One example is Luther v. Borden (1849).
The Executive Branch, which includes the president, is in charge of enforcing laws, the Legislative Branch controls making laws, and the Judicial Branch is a system of courts that interpret the laws created and enforced by the other branches. Hamilton stated as opposed to the Executive and Legislative branches of government, “...[The Judicial Branch] has no influence over the sword or the purse;” (Federalist #78) Because the Executive branch has the power to enforce law and the Legislative branch has the power to declare war and make laws, Hamilton argues that the Judicial branch is the least dangerous. Although I believe the Judicial branch has many positive aspects, I agree with Hamilton’s argument
Common law differs because it’s a law that is created by judges is based on past court decisions. If statutory law conflicts with common law, statutory law will govern. Common law has not been made into a statute, in which case it would be a statutory law. 1-8 The judge's role is not to make the law but to uphold and apply the law. Do you agree or disagree with this statement?
Federalists justified the absence of a declaration of rights by arguing that the Constitution established a federal system with specific powers delegated to the national government and other powers reserved to the states. Massachusetts approved the Constitution in February, 1788, with a call for “certain amendments and alterations” to lessen “the fears and quiet the apprehension of many of the good people of the commonwealth.” Ratification debates in New York and Virginia showed the degree of opposition and ultimately lead to a promise of the inclusion of a Bill of Rights. James Madison introduced a series of amendments to the Constitution in the House of Representatives on June 8, 1789. Federalists opposed on the same grounds as they argued in the ratification debates and further argued that it was inappropriate to amend the Constitution at this time. Some members of Congress argued that a listing of rights of the people was a silly exercise, in that all the listed rights inherently belonged to citizens, and nothing in the Constitution gave the Congress the power to take them away.
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.
The Judiciary Act of 1789 gave the Supreme Court jurisdiction, but the Marshall court ruled the Act of 1789 to be an unconstitutional extension of judiciary power into the realm of the executive. Fellow Hamiltonian and chief Justice Marshall dismissed Marbury’s suit, avoiding a political show down and magnifying the power of the court. This case cleared controversy over who had final say in interpreting the constitution. The states didn’t, the Supreme Court did. This case established the principle of judicial review and gave strengths and power to the
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.