scholarly journals Judicial Supremacy and National Judicial Review

2011 ◽  
Author(s):  
Ken I. Kersch
Keyword(s):  
Judicial Review ◽  
Federal Courts ◽  
Theory And Practice ◽  
Academic Disciplines ◽  
Alexander Hamilton ◽  
The People ◽  
Judicial Supremacy ◽  
The Us ◽  
Us Constitution ◽  
We The People

Judicial review is the power of a court to assess the constitutionality of legislation, and to hold null and void any legislation it finds to contravene the Constitution. Although not mentioned anywhere in the US Constitution, the power was exercised by both state and federal courts from the nation’s inception, most prominently by the US Supreme Court in Marbury v. Madison (1803). In Marbury, borrowing from arguments advanced earlier by Alexander Hamilton in Federalist #78, and more general common law and colonial understandings, Chief Justice John Marshall set out a theoretical justification for the practice anchored in a court’s duty to decide cases according to law. In so doing, where a court finds a conflict between the fundamental law of the Constitution (adopted by “We the People,” acting in their sovereign capacity), and ordinary law (passed by legislatures), the court is obliged to give precedence to the former over the latter. Although this has been widely accepted as a legitimate practice arising out of a judge’s broader duty to decide cases according to law, there were always those who objected to judicial review as implicitly instituting “judicial supremacy,” where, by virtue of the exercise of the judicial review power, a judge’s interpretation of the Constitution was held to take precedence over that of any other. But why should the judge’s interpretation be understood as supreme, when elected members of Congress and the president—like judges—also takes oaths to uphold the Constitution and may have their own, perhaps more sensible, interpretation? Debates over these matters recur throughout American history, particularly in periods when, on matters of unusual political salience, the court’s interpretation of the Constitution is consistently at odds with that of other elected officials, or of the people (what, in recent years, has come to be called “extra-judicial constitutional interpretation”). For over a century now—beginning with the contestation in the late 19th and early 20th centuries between traditionalist judges wielding their judicial review powers versus the progressive innovations of the newly emerging American regulatory and social welfare state—the nature, theory, and practice of judicial review have been at the center of academic and popular discussion of US constitutional law. The subject has thus been approached from many angles, by scholars from different academic disciplines, with a diversity of questions in mind. Those researching judicial review will usually have in mind a particular angle rather than the whole subject.

scholarly journals We the People: A Progressive Reading of the Constitution for the Twenty-First Century

2020 ◽  
Vol 4 (3) ◽  
pp. 15
Author(s):  
Ross Allan Sempek
Keyword(s):  
First Century ◽  
The Core ◽  
The People ◽  
The Us ◽  
Us Constitution ◽  
Twenty First Century ◽  
We The People

With government machinations, scandals, and conflict bombarding our American consciousness, it’s easy to overlook the core of our country’s identity: the US Constitution. The first three words of this dearly regarded text remind us that we are the constituents who fulfill the ideals of this document. We the People are the progressive catalyst this country needs to realize the lofty ideals of our Constitution.

Judicial Review

2016 ◽  
Author(s):  
Michael Schillig
Keyword(s):  
Judicial Review ◽  
Due Process ◽  
Fundamental Rights ◽  
Bank Resolution ◽  
The Us ◽  
Charter Of Fundamental Rights ◽  
Us Constitution ◽  
Takings Clause ◽  
The Right ◽  
The Eu

The exercise of extensive powers by authorities during the recovery and resolution process may interfere with constitutionally protected fundamental rights of stakeholder in a multitude of ways. Particularly relevant are the right to conduct a business and the right to property under the EU Charter of fundamental rights, as well as the takings clause under the US constitution. A balance needs to be struck between the aims and objectives of bank resolution and the rights of investors and the requirements of due process. This is normally achieved through expedited and limited judicial review. This chapter assesses whether and to what extent the respective procedures are in line with constitutional and fundamental rights requirements.

Judicial Review

2021 ◽  
pp. 31-68
Author(s):  
Jeffrey S. Sutton
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
The State ◽  
State Courts ◽  
Court Case ◽  
State Laws ◽  
State Constitutions ◽  
The Us ◽  
Us Supreme Court ◽  
Us Constitution

The conventional account of judicial review starts with a US Supreme Court case, Marbury v. Madison. But judicial review in truth starts with the state courts and the state constitutions, not the US Supreme Court and the US Constitution. Before the US Constitution existed, the state courts established American judicial review and were the first courts to wrestle with the complexities of exercising it. Judicial review also is foremost a structural story, not an individual-rights story. The delegation of power to the judiciary to decide the meaning of our constitutions laid the groundwork for the growth in power of American courts—especially the federal courts, which have become the go-to answer for so many who-decides questions in American government over the last seventy-five years. This chapter begins a search for insights in resolving the dilemma of judicial review by looking at how the state courts innovated the concept and the ways they initially practiced it. It shows that the early state courts were deferential to the democratic branches of government. They rarely invalidated state laws and did so only when these laws violated a clear constitutional rule. That approach offers lessons for federal and state courts alike.

Discourse, interests, and the law: Some pragma-legal reflections

2017 ◽  
Vol 2 (1) ◽  
Author(s):  
Jacob L. Mey
Keyword(s):  
Legal Discourse ◽  
Black Population ◽  
Freedom Of The Press ◽  
Legal Text ◽  
The People ◽  
Sexual Orientations ◽  
The Press ◽  
The Us ◽  
Us Constitution ◽  
The Law

AbstractThe present paper discusses the evolution of legal discourse as it is happening in a number of well-publicized American cases. Discussions of the First and Second Amendments to the US Constitution in relation to freedom of the press and the freedom to carry and use arms are followed by a general discussion of what it means to have a legal text considered as binding across the centuries. It is shown that legal discourse is pragmatically oriented, that is to say, its application and evolution are subject to the general evolution of society and its members, the people interacting with, and interpreting that discourse; this evolution is thus a typical pragmatically relevant process. Over the course of the centuries and years, accumulative gradual developments have often ended up totally altering the interpretation of certain laws and statutes – sometimes to the advantage, sometimes to the disadvantage of underprivileged segments of society, such as the Black population and people of different sexual orientations. The paper will discuss some characteristic historic and contemporary cases of this development.

Unilateral, Non-Statutory Executive Powers

2021 ◽  
pp. 101-136
Author(s):  
Margit Cohn
Keyword(s):  
Judicial Review ◽  
Depth Analysis ◽  
The Us ◽  
Us Constitution ◽  
Legal Constraints ◽  
High Level ◽  
Commander In Chief ◽  
Rule Making

This chapter offers an in-depth analysis of one form of constitution-generated fuzziness – unilateral rule-making under the constitution. The bases of such powers include historically-embedded sources of power such as the British royal prerogative, uncontested long-standing practices, expansive interpretations of clauses in a written constitution such as the take-care and the Commander-in-Chief clauses in the US Constitution, and reliance on other constructs such as 'third-source' powers, 'constitutional gloss' and concepts of sovereignty. The high-level but indeterminate sources of such action typically do not demarcate the limits of such action; thus, they essentially guarantee the fuzziness so favoured by executives. The chapter considers in detail all the recognized sources for the continued existence of unilateral non-statutory powers in the two compared systems, and addresses two accepted legal constraints on their application: their subjection to statute, under the doctrine of residuality, and their subjection to judicial review.

The people and the voters

2020 ◽  
pp. 019145372097473
Author(s):  
Alessandro Ferrara
Keyword(s):  
Deliberative Democracy ◽  
Judicial Review ◽  
Regulatory Function ◽  
The People ◽  
We The People ◽  
Main Flaw

Cristina Lafont’s Democracy Without Shortcuts enriches the discussion of deliberative democracy with new insights. After discussing her three objections against Waldron’s denunciation of judicial review as antidemocratic, the main flaw of Waldron’s thesis is argued to remain out of focus. The constitution is understood by him as owned by the living citizens, in a pattern of serial sovereignty that raises three problems: (a) the ‘wanton republic’; (b) the under-individuation of the polity; (c) generational inequality. The answer to Lafont’s question ‘Can We Own the Constitution?’ (Section Three) is then argued to be that only ‘we the people’, including past, present and future ‘free and equal’ generations, own the constitution. The living citizens are the segment of ‘the people’ endowed with agency, have a voice, can modify the inherited political scheme, but cannot legitimately disfigure it, under penalty of destroying the regulatory function of the constitution.

scholarly journals The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution

2021 ◽  
pp. 1
Author(s):  
William Treanor
Keyword(s):  
Judicial Review ◽  
Early Republic ◽  
Private Property ◽  
Committee Member ◽  
Federal Courts ◽  
Executive Power ◽  
Alexander Hamilton ◽  
The Federalist ◽  
Textual Basis ◽  
The Creation

At the end of the Constitutional Convention, the delegates appointed the Committee of Style and Arrangement to bring together the textual provisions that the Convention had previously agreed to and to prepare a final constitution. Pennsylvania delegate Gouverneur Morris drafted the document for the Committee, and, with few revisions and little debate, the Convention adopted Morris’s draft. For more than two hundred years, questions have been raised as to whether Morris covertly altered the text in order to advance his constitutional vision, but modern legal scholars and historians studying the Convention have either ignored the issue or concluded that Morris was an honest scrivener. No prior article has systematically compared the Committee’s draft to the previously adopted resolutions or discussed the implications of those changes for constitutional law. This Article undertakes that comparison. It shows that Morris made fifteen significant changes to the Constitution and that many of the Constitution’s central elements were wholly or in critical part Morris’s work. Morris’s changes strengthened the national executive and judiciary, provided the textual basis for judicial review, increased presidential accountability through an expansive conception of impeachment, protected private property, mandated that the census report reflect “actual enumeration,” removed the constitutional text suggesting that slavery was just, and fought slavery’s spread. This Article also shows that Morris created the basis for the Federalist reading of the Constitution. Federalists—notably including fellow Committee member Alexander Hamilton—repeatedly drew on language crafted by Morris as they fought for their vision of the Constitution. Because the changes Morris made to the Convention’s agreed language were subtle, both Republicans and Federalists were able to appeal to text in the great constitutional battles of the early republic. Modern originalists claim that the Republican reading reflects the original understanding of the Constitution, but this Article argues that the largely dismissed Federalist reading explains words, phrases, and punctuation that the Republican reading ignores or renders unintelligible. By contrast, the Federalist reading of the Preamble (which they saw as a grant of substantive power), the Article I and Article II Vesting Clauses (which were contrasted to argue for expansive executive power), the Article III Vesting Clause (which they read to mandate the creation of lower federal courts), the Contracts Clause (which they read to cover public as well as private contracts), the Impeachment Clause (which they read to cover both nonofficial and official acts), and the “law of the land” provision (which they construed as a basis for judicial review) gives effect to Morris’s—and the Constitution’s—words.

Another Birth of Freedom

2017 ◽  
Author(s):  
Angélica Maria Bernal
Keyword(s):  
Public Schools ◽  
Civil Rights ◽  
Mexican American ◽  
Subject Position ◽  
Constituent Power ◽  
Constitutional Politics ◽  
The People ◽  
The Us ◽  
To Come ◽  
We The People

This chapter examines a previously unexplored perspective on the US civil rights refounding: Méndez v. Westminster School District et al. (1947), a case reflecting the political and legal struggles of Mexican American parents in 1940s Orange County to challenge their children’s segregation from California’s public schools. Against familiar interpretations that excluded groups advance social-justice claims before the broader society as appeals to the promises of the Founding or Founders, this chapter argues that even when situated as appeals within the law, foundational challenges are better understood as underauthorized ones: actions that self-authorize not on the basis of an order that once was, but on the basis of a citizen-subject position and political order that are at once precarious and yet to come. This type of constitutional politics, the chapter argues, challenges understandings of democratic self-constitution predicated on a unified “We, the People” by bringing to light the constituent power of the excluded.

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