RESTRICTIONS ON JUDICIAL ELECTION CAMPAIGN SPEECH: SILENCING CRITICISM OF LIBERAL ACTIVISM

2004 ◽  
Vol 21 (2) ◽  
pp. 148-176 ◽  
Author(s):  
Lino A. Graglia
Keyword(s):  
United States ◽  
Judicial Review ◽  
Constitutional Law ◽  
The United States ◽  
Judicial Power ◽  
Election Campaign ◽  
Judicial Activism ◽  
Policy Choices ◽  
The World

Constitutional law in the United States is, for most practical purposes, the product of ‘judicial review’, the power of judges to disallow policy choices made by other officials or institutions of government, ostensibly because those choices are prohibited by the Constitution. This extraordinary and unprecedented power, America's dubious contribution to the science of government, has made American judges the most powerful in the world, not only legislators but super-legislators, legislators with virtually the last word. Because lawmaking power divorced from popular will is tyranny, most states have attempted to reconcile the lawmaking power of judges with representative self-government by subjecting all or some judges to some form of popular election. In all but four such states, judges, encouraged and supported by their fellow lawyers in the organized bar—would-be judges and beneficiaries of judicial power—have responded by adopting codes of judicial ethics that limit what candidates for election to judicial office are permitted to say. The effect is to undermine elections as a control on judicial power by limiting criticism of judicial activism, the misuse of judicial power.

James Bryce and the Australian Constitution

2015 ◽  
Vol 43 (2) ◽  
pp. 177-200
Author(s):  
Stephen Gageler
Keyword(s):  
United States ◽  
Judicial Review ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Constitutional Development ◽  
Practical Operation ◽  
Responsible Government ◽  
Shed Light

James Bryce was a contemporary of Albert Venn Dicey. Bryce published in 1888 The American Commonwealth. Its detailed description of the practical operation of the United States Constitution was influential in the framing of the Australian Constitution in the 1890s. The project of this article is to shed light on that influence. The article compares and contrasts the views of Bryce and of Dicey; Bryce's views, unlike those of Dicey, having been largely unexplored in contemporary analyses of our constitutional development. It examines the importance of Bryce's views on two particular constitutional mechanisms – responsible government and judicial review – to the development of our constitutional structure. The ongoing theoretical implications of The American Commonwealth for Australian constitutional law remain to be pondered.

WHAT ARE CONSTITUTIONS, AND WHAT SHOULD (AND CAN) THEY DO?

2010 ◽  
Vol 28 (1) ◽  
pp. 1-24 ◽  
Author(s):  
Larry Alexander
Keyword(s):  
United States ◽  
Judicial Review ◽  
Constitutional Law ◽  
The United States ◽  
United States Constitution ◽  
Moral Rights ◽  
Constitutional Change ◽  
Principal Function ◽  
Fundamental Law

AbstractA constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions.

scholarly journals Organizing Court Administration in order to fulfil access to justice under the Covid-19 State of crisis

2020 ◽  
Vol 9 (12) ◽  
pp. e41891211113
Author(s):  
Ibnu Sina Chandranegara ◽  
Luthfi Marfungah
Keyword(s):  
United States ◽  
Constitutional Law ◽  
Regulatory Authority ◽  
The United States ◽  
Judicial Power ◽  
Comparative Approach ◽  
Access To Justice ◽  
Procedural Law ◽  
Court Administration ◽  
The Law

The Covid-19 pandemic in different countries, particularly in terms of performing their duties and functions, has both direct and indirect implications on the judiciary. This paper calls for a contrast between the implementation of law emergencies in the United States and the judiciary's reflection in Indonesia. The study uses the comparative approach in constitutional law to provide advice, which needs to be avoided in the Indonesian constitutional law by researching legal material and procedures in other countries' constitutional law. This article concludes that the Law of Judicial Power and the Law of Procedure in Indonesia require strict legal material on how procedural law does not give delegates too much technical, regulatory authority to each court during the time of crisis and has the potential to create unequal policies in the future to deal with judicial emergencies so that regulation is necessary.

Coke, Corwin and the Constitution: The “Higher Law Background” Reconsidered

1993 ◽  
Vol 55 (3) ◽  
pp. 393-420 ◽  
Author(s):  
Gary L. McDowell
Keyword(s):  
United States ◽  
Judicial Review ◽  
Natural Law ◽  
Constitutional Law ◽  
Moral Theory ◽  
The United States ◽  
American Constitution ◽  
Higher Law ◽  
Relationship Of ◽  
The Relationship

In recent years the debate over the nature and extent of judicial power in the United States has been dominated by questions concerning moral theory, unwritten constitutions, and natural law. In a significant sense, the contemporary discussion is but the continuation of the theory of judicial review first put forth by Edward S. Corwin in 1910–1911; it was this theory that the “higher law background” of American constitutional law derived from the dicta of Sir Edward Coke's opinion in Bonham's Case (1610) that was given its most complete expression in Corwin's famous two-part article in the Harvard Law Review in 1928–29. The fact is, the influence of Coke's opinion in Bonham's Case came from within the scholarly world; its significance stems not from history but from the historians; it was largely Corwin's creation. This paper seeks to correct the record and to show the deficiencies of Corwin's understanding about the relationship of the “higher law” to the American Constitution.

scholarly journals In the Balance: The Art of Norman Rockwell and Alex Colville as Discourses on the Constitutions of the United States and Canada

1969 ◽  
pp. 475 ◽  
Author(s):  
David Howes
Keyword(s):  
United States ◽  
Constitutional Law ◽  
The United States ◽  
Thinking Skills ◽  
Visual Thinking ◽  
Cultural Groups ◽  
The World ◽  
Norman Rockwell

The author analyzes the nature of the Canadian and American constitutions through a series of analogies with the art of Alex Colville and Norman Rockwell as representatives of the culture and underlying mindsets of these nations. According to the author, the artists' perceptions of the world have been influenced by their respective nations' constitutions and the paintings of Colville and Rockwell thus express the values inherent in these constitutions. He contrasts the foundation of Canadian confederation, an alliance between two distinct linguistic and cultural groups, with the indivisible unity he ascribes to the American constitutional setting. The author concludes that by seeing the separation of figures in Colville's paintings and their fusion in Rockwell's, the viewer can grasp the essence of the countries the artists represent. The author further encourages constitutional law scholars to broaden their attentions to include legal interpretations of non-legal works, to develop "visual thinking" skills and a visionary attitude and to extend the field of constitutional studies to include a nation's "habits of the heart".

Judicial Review: The Meaning of the Judicial Power

2013 ◽  
Author(s):  
Randy E. Barnett
Keyword(s):  
United States ◽  
Supreme Court ◽  
Judicial Review ◽  
The United States ◽  
Judicial Power ◽  
Contentious Issue ◽  
Judicial Supremacy ◽  
The Supreme Court ◽  
The Law

This chapter applies the concepts of interpretation and construction to the contentious issue of judicial review and examines the originalist evidence that overwhelmingly supports the judicial power to nullify unconstitutional laws. According to Article III of the Constitution: “The judicial Power of the United States, shall be vested in one Supreme Court, and in such Courts as Congress may from time to time ordain and establish.” The Constitution does not say explicitly that the “Supreme Court, and such inferior courts as may be established by Congress, shall have power to nullify a Law enacted by Congress and signed by the President if the Law is unconstitutional.” The absence of a clearly expressed grant of power has moved some critics of judicial review to question its legitimacy. The chapter also considers the concepts of judicial nullification and judicial supremacy as they relate to judicial review.

I The Constitutional Court, 2 The Constitutional Court: Rules and Model

2016 ◽  
Author(s):  
Barsotti Vittoria ◽  
Carozza Paolo G ◽  
Cartabia Marta ◽  
Simoncini Andrea
Keyword(s):  
United States ◽  
Judicial Review ◽  
The United States ◽  
Constitutional Court ◽  
The World ◽  
Hans Kelsen ◽  
Constitutional Adjudication

This chapter succinctly introduces the reader to the composition, jurisdictional scope, and methods of judicial review in Italy. Using both direct and incidental methods of judicial review, the Italian system combines certain elements of centralized systems (like the Austrian paradigm of Hans Kelsen) with elements of diffuse systems of review like that of the United States. The chapter highlights the highly collegial structure and process of the Court. Overall, the cooperative and multilevel character of Italian constitutional adjudication emerges as its most distinctive contribution to our understanding of the range of the varieties of constitutional models and experiences in the world.

Working smart and hard? Agency effort, judicial review, and policy precision

2016 ◽  
Vol 29 (1) ◽  
pp. 69-96 ◽  
Author(s):  
Ian R Turner
Keyword(s):  
United States ◽  
Judicial Review ◽  
Formal Model ◽  
The United States ◽  
Congressional Oversight ◽  
Policy Choices ◽  
Administrative Agencies ◽  
Integral Role ◽  
Agency Policy

The lion’s share of policy in the United States is made by administrative agencies. Agencies not only make policy choices, they must also implement policy effectively. Oversight institutions play an integral role in the policymaking process by monitoring, through review of agency policy actions, both policymaking tasks. Through analysis of a formal model I develop a theory of policymaking between agencies and courts and show that review can impact agency effort choices even when bureaucratic subversion is not a concern. At times the court has no impact on this effort and the agency is unconstrained. However, when the agency’s effort dictates whether or not the court defers to the agency’s actions judicial review does affect effort decisions. In this setting, review can either strengthen or, counter-intuitively, weaken agency effort incentives. Implications for executive and congressional oversight are discussed in light of these results.

Judicial Review and Politics in Australia

1957 ◽  
Vol 51 (2) ◽  
pp. 386-391 ◽  
Author(s):  
M. J. C. Vile
Keyword(s):  
United States ◽  
Decision Making ◽  
Judicial Review ◽  
Party System ◽  
The United States ◽  
Judicial Power ◽  
Recent Issue ◽  
American Party

In a recent issue of this Review John P. Roche developed an explanation of the motivation behind the exercise of self-restraint by the United States judiciary. He related the scope available for the exercise of judicial power to the working of the American party system, i.e., to the extent to which the Court found itself faced by “cohesive majorities.” Almost in passing he drew a comparison between the British and the American position. “No cohesive majority, such as normally exists in Britain,” he said, “would permit a politically irresponsible judiciary to usurp decision-making functions, but, for complex social and institutional reasons, there are few issues in the United States on which cohesive majorities exist.” The purpose of this essay is to test that thesis, and the concept of cohesive majorities, in the setting of Australian politics and judicial review.

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