scholarly journals An American Notwithstanding Clause? Between Potestas and Potentia

Laws ◽  
2021 ◽  
Vol 10 (3) ◽  
pp. 72
Author(s):  
Boleslaw Z. Kabala ◽  
Rainey Johnson
Keyword(s):  
Supreme Court ◽  
Political Activity ◽  
Constitutional Amendment ◽  
American People ◽  
Baruch Spinoza ◽  
Joint Declaration ◽  
Judicial Supremacy ◽  
The Us ◽  
Us Constitution ◽  
Accepted Practice

Debates about judicial review and departmentalism have continued to rage, and in the wake of the last three Supreme Court appointments and current Presidential Commission on the Court, only look to intensify. Should the US adopt a notwithstanding or override provision, of the kind that exits in Canada and Israel? These countries take a departmentalist approach to allow the legislature to override the Court, “notwithstanding” its ruling. Although America is a presidential framework, a paradox emerges: evidence exists that its system already makes possible the equivalent of a notwithstanding clause. This consists of Congress and the President together “overruling” the Supreme Court. In another sense, however, this is not an accepted practice—large parts of the legal community hold that the US Constitution establishes judicial supremacy. To better understand this dynamic, we consider two kinds of power: formal and authorized (potestas) as well as direct and concrete (potentia). The contrast between the positions on both power and sovereignty of Thomas Hobbes (associated with potestas) and Baruch Spinoza (linked to potentia) helps clarify these issues in a contemporary context. It turns out that a robust departmentalist equivalent of the notwithstanding clause already exists in the US, as a matter of Hobbesian potestas but not of Spinozist potentia. Another term for the latter is pouvoir constituant. Spinoza’s perspective on political activity further clarifies the in-between nature of the American override capacity: the active or passive character of a multitude is not binary, but is a matter of degree. Without making an institutional recommendation, we note that Spinoza’s understanding of power also allows for dynamic interaction between potentia and potestas: formal authorization can contribute to the expression of direct power. It is, therefore, conceivable that additional codification of the existing American override capacity, either through a joint declaration of Congress and the Presidency or a Constitutional Amendment, can strengthen the effective sovereignty of the American people in relation to the courts.

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.

Treaties in US Domestic Law: Medellín v. Texas in Context

2009 ◽  
Vol 8 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Lucy Reed ◽  
Ilmi Granoff
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Federal Law ◽  
International Court Of Justice ◽  
International Court ◽  
The Us ◽  
Treaty Law ◽  
Us Constitution ◽  
Death Penalty Case

AbstractIn Medellín v. Texas, a Texas death penalty case, the United States Supreme Court decided that it could not enforce what it acknowledged to be an international legal obligation to comply with the Avena judgment of the International Court of Justice. The Supreme Court's judgment in Medellín has put our understanding of the domestic treatment of US treaty law in a state of flux. Under the Supremacy Clause of the US Constitution, treaties are the supreme law of the land: binding, equivalent to federal statutes and enforceable by judges. After Medellín, treaties may not necessarily be enforceable federal law, depending on whether they are self-executing without additional legislation. The Supreme Court's decision depends upon the dramatic expansion of a narrow but necessary exception to the Supremacy Clause provided in an 1829 Supreme Court precedent. The consequence of that expansion is to put the US historical approach to treaty-making in question. This article provides (a) a brief overview of treaty law in the United States, including the law before Medellín regarding the domestic effect of treaty law, (b) an overview of Medellín, (c) a critique of the Court's reasoning in Medellín and (d) a discussion of its consequences.

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.

Conclusion

2021 ◽  
pp. 185-196
Author(s):  
Elliott Young
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
First Century ◽  
The Supreme Court ◽  
The Us ◽  
Indefinite Detention ◽  
Us Constitution ◽  
Immigrant Detention ◽  
Constitutional Protections

Although the Supreme Court limited detention for non-citizens in the first decade of the twenty-first century (Zadvydas [2000] and Martinez [2005]), its most recent decisions indicate that under certain circumstances non-citizens can be held indefinitely behind bars with no possibility of even a bond hearing. In practice, non-citizens deemed excludable from the United States are like the forever prisoners of Guantanamo, exposed to massive state power with few constitutional protections. Khalid Qassim is one of the forty Guantanamo detainees held for more than eighteen years to date with no charges and no trial. Although Guantanamo prisoners are not voluntary immigrants, they share with immigrants a lack of protection by the US Constitution and a vulnerability to indefinite detention. Immigrant detention today is part of a carceral landscape in the United States that includes more than 2 million citizens behind bars.

scholarly journals Moving Faster Than the Speed of Regulation: Can State-Authorized Sports Wagering Dodge a Game-Fixing Bullet Without the Help of the Feds?

2020 ◽  
Vol 30 (2) ◽  
pp. 85-105
Author(s):  
Anthony Cabot ◽  
Keith Miller
Keyword(s):  
Supreme Court ◽  
State Legislatures ◽  
Sports Betting ◽  
Us History ◽  
The Supreme Court ◽  
The Us ◽  
Us Constitution

The Professional and Amateur Sports Protection Act (PASPA), was a 1992 law that, as has been well-documented, effectively restricted sports betting to Nevada. PASPA accomplished this by dictating that states could not "sponsor, operate, advertise, promote, license, or authorize by law or compact," sports wagering. A separate provision forbade private parties from operating state-authorized sportsbooks. In 2018, the Supreme Court invalidated PASPA as a violation of the 10th Amendment to the US Constitution. The Court held that Congress did not have the constitutional authority to tell a state how to legislate and PASPA's provision that states could not authorize sports betting dictated to state legislatures what they were permitted to do and not do. The Court's ruling unleashed an explosion of pent-up energy for sports betting that had been building since PASPA became effective in 1993. Since that decision, several states have authorized sports betting in one of the most rapid expansions of a form of gambling in US history. Even more states are considering legislation that would permit sports betting, and the number of states legalizing and regulating sports betting will inevitably increase in 2020 and beyond. The controversy over sports betting has pivoted from whether states could legally offer sports betting, to whether they should legalize sports wagering, and if so, how they should go about regulating it.

Epilogue

Quarters ◽  
2019 ◽  
pp. 236-244
Author(s):  
John Gilbert McCurdy
Keyword(s):  
Supreme Court ◽  
Revolutionary War ◽  
Declaration Of Independence ◽  
Us History ◽  
The Third ◽  
Military Geography ◽  
The Us ◽  
Us Supreme Court ◽  
Us Constitution ◽  
Revolutionary America

This chapter concludes the book by asking what effects quartering in Revolutionary America has had on US history. Opposition to quartering appeared in the Declaration of Independence and informed the Third Amendment to the US Constitution, but the Americans also ignored restraints on quartering during the Revolutionary War and have never tested the Third Amendment before the US Supreme Court. However, the ideas of place that appeared between 1754 and 1775 because of quartering have continued to inform American ideas about military geography as well as places like the home, city, and nation.

scholarly journals Ethical Principles on the Freedom of Speech and Expression in the Developed and Developing Countries

2020 ◽  
Vol 4 (1) ◽  
Author(s):  
Abdul Alim
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Freedom Of Speech ◽  
The United States ◽  
United States Constitution ◽  
Bill Of Rights ◽  
The Us ◽  
Us Constitution

The First Amendment to the United States Constitution is an essential part of the Bill of Rights. The amendment prohibits making of any law respecting an establishment of religion, obstructing the free exercise of religion, infringing on the freedom of speech, infringing on the freedom of the press, interfering peoples assembling rights in a peaceful manner or prohibiting the petitioning for a governmental remedy of grievances. The guarantees of this Bill of Rights were subject to the limitation imposed by the free speech and press provisions of the First Amendment to the US Constitution as interpreted and applied by the Supreme Court and other courts. The United States and India are the largest democratic country and almost have similar free speech provisions in their Constitutions. This Article is intended to present the free speech provisions of the American and Indian Constitution as a basic fundamental right of human being. It is also to be examined that what is the role of Supreme Court in interpreting the freedom of speech and expression provisions. The study also tries to incorporate the comparison between the looms of both countries as far as freedom of speech is disturbed.

Introduction

2020 ◽  
pp. 1-12
Author(s):  
Billy Coleman
Keyword(s):  
Civil War ◽  
Political Power ◽  
American Civil War ◽  
American People ◽  
The Political ◽  
Diverse Population ◽  
The Us ◽  
Political Effect ◽  
Us Constitution ◽  
Partisan Conflict

This introduction overviews the book’s argument about how early Americans discovered the political power of music. Music had always been ground of contestation for early Americans but following the ratification of the US Constitution conservative elites in particular looked to music to persuade Americans to rise above political and partisan conflict to instead create a more unified, ordered, and deferential society. This conservative tradition of eliciting political effect from music’s improving, elevating, and refining effects as opposed to its more radical, or disruptive, qualities was intended to unite a diverse population in support of its leaders. However, it also placed music at the center of fraught debates over the proper relationship between the American people and their leaders. Despite resistance from various groups, conservative ideals of musical power successfully shaped perceptions of its political use at least through to the end of the American Civil War.

Law in the Time of Constitutional Rot

2020 ◽  
pp. 135-147
Author(s):  
Jack M. Balkin
Keyword(s):  
Supreme Court ◽  
Economic Inequality ◽  
Political Corruption ◽  
Dominant Party ◽  
Judicial Decisions ◽  
Federal Judiciary ◽  
The Supreme Court ◽  
The Us ◽  
Us Constitution ◽  
Republican Government

In periods of advanced constitutional rot, judicial decisions become especially polarized. Judicial majorities tend to reach decisions that increase economic inequality, shrink the electorate, and help maintain political oligarchy. Members of the dominant party want judges to help them stay in power, to support politicians’ self-entrenching behavior, to defend and protect politicians from charges of corruption, and to enrich their financial supporters. As a result, the judiciary tends to be part of the problem rather than part of the solution. Ordinarily, the US Constitution relies on the judiciary to protect democracy and republican government, and to prevent political corruption and self-entrenching behavior. But in periods of advanced constitutional rot, the Supreme Court and the federal judiciary are likely to be ineffective and may even make matters worse.

scholarly journals Is “Constitutional Veneration” an Obstacle to Constitutional Amendment?

2021 ◽  
pp. 1-12
Author(s):  
Christopher T. Dawes ◽  
James R. Zink
Keyword(s):  
Research Design ◽  
Institutional Factors ◽  
Constitutional Amendment ◽  
Direct Link ◽  
The Us ◽  
Survey Experiments ◽  
Us Constitution

Abstract Some constitutional scholars suggest that the US Constitution stands as one of the oldest yet least changed national constitutions in part because Americans’ tendency to “revere” the Constitution has left them unwilling to consider significant changes to the document. Several recent studies support aspects of this claim, but no study establishes a direct link between individuals’ respect for the Constitution and their reluctance to amend it. To address this, we replicate and extend the research design of Zink and Dawes (2016) across two survey experiments. The key difference in our experiments is we include measures of respondents’ propensity to revere the Constitution, which in turn allows us to more directly test whether constitutional veneration translates into resistance to amendment. Our results build on Zink and Dawes’s findings and show that, in addition to institutional factors, citizens’ veneration of the Constitution can act as a psychological obstacle to constitutional amendment.

Sign in / Sign up

Export Citation Format

Share Document