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An essay about judicial review
Judicial Activism And Restraint
Judicial Activism And Restraint
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Judicial review is the power of the courts to declare acts of Congress to be in conflict with the Constitution. Judicial review is often seen as controversial and has contending views. Additionally, many people believe the founders would not approve use of the judicial review based on essays from 1788. In addition, many people respond to the Supreme Court’s use of the judicial review differently, such as the President views it differently than the average American citizen. And while judicial restraint and judicial activism appear to the same they are quite different from one another. Lastly, this all ties in with judicial review in understanding what exactly judicial review is. Firstly, judicial review is controversial because while the three branches of government are supposedly equal, the judicial review grants the Judicial Branch the most power. As a result, this lets the Judicial Branch tell the other branches no, this cannot be done. Another reason it is controversial is the fact that there are nine judges who determine what is Some people feel that the frequent use of judicial review can lead to commanding judiciary. Whereas with judicial activism people feel the Supreme Court should exercise the right of judicial review and is considered necessary. This all ties in together with how the Constitution is interpreted as stated earlier. In conclusion, judicial review is viewed as controversial and it also has contending views for various reasons. While the President, Congress, states, and Americans all have different reactions to the judicial review the Founders would not support the judicial review today. And in the end judicial review, activism, and restraint all tie in together to help one gain a better understanding of what exactly judicial review
The final outcome to the case of Clinton v. The City of New York was very surprising to many different people. The constitutional issues that were brought up was that with the Line Item Veto Act the President had too much power. Many arguments were brought up in the Supreme Court from both the majority and the dissenting sides. The whole case being ruled unconstitutional by the Supreme Court and then coming to a mooted point to this day. I believe that this ruling was incorrect in the fact that the majority should feel good that they had received the rest of the bill.
In the case of U.S. v Jones, the judicial branch had to address the questionable topic of whether or not the Fourth Amendment was violated (). Since this case was not black and white and did bring up many questions as to what was constitutional, the judges had to use judicial review. Judicial review is the power that allows judges to interpret the meaning of laws (Class, March 13). Once a law is understood a certain way, the people must follow it (Class, __). The U.S. v Jones case deals with the Bill of Rights (United, 1). This is due to the circumstance that the Fourth Amendment is included in the Bill of Rights document stating that “searches and seizures” cannot be done without a warrant (Class,___). The case of U.S. v Jones was about the violation of Jones’s Fourth Amendment when a GPS device was placed on his jeep without his consent because he was suspected of drug possession (United, 1). Since judges have the power to informally amend the Constitution using judicial review (Class, ___), they must take into consideration many contributing elements when making a decision.
The type of elections is widely criticized for delivering less qualified results, considering the fact that the public does not have enough information on judicial candidates and their qualifications. Furthermore, judicial candidates are not allowed to take stands on controversial issues or specific cases in accordance with the Judicial Code of Conduct (Corriher, 2012).
...level and not to the state level (once again undermining state government authority). For these reasons, the U.S. Supreme Court decision in this case was one of the most controversial decisions at that time. Up until this decision was made, police in many states had ignored the search and seizure law.
When the rights of the American citizen are on the line than the judiciary should utilize the powers invested in them to protect and enforce what is constitutional. However, in times of controversy, where personal preference or aspects of religious or personal nature are at hand, the judiciary should exercise their power with finesse, thereby acting out judicial restraint. An example of such is in the case of Engel v. Vitale where Mr. Justice Black delivered the opinion of the court directing the School District’s principal to read a prayer at the commencement of each school day. In cases that do not regard whether an action is constitutional or not, the judiciary should suppress their power of judicial review.
In one case talked about in the textbook, which was Roe v Wade, the outcome ruled that Texas’s view that abortion was a criminal act was unconstitutional. The majority of justices believed that right to privacy includes the right to have an abortion and this wasn’t found in written words in the constitution. The outcome of this decision was influenced from the other Supreme Court case of Griswold v Connecticut. Another important case we discussed in class was Brown v Board of Education and this was an example of judicial activism. This is an example of that because the ruling in the Plessy v Ferguson case that facilities are in fact “separate but equal” was over turned in the Brown v Board of Education case defying the stare decisis (textbook) of letting the ruling stand and incorporating the ruling in this case. People who oppose these rulings back their claim by stating that the judges took their own beliefs into consideration and ignored the rule of law. Therefore, they are undermining democracy and not strictly following the text of the constitutions. More importantly many who oppose this bring up the point that the justices are those who are suppose to strictly follow the text of the constitution and not base decisions on their perspective on the
The Judiciary Branch offers checks and balances to the other branches of government. To both the Legislative and Executive branches, the Judicial Branch holds the power of judicial review. The Judicial branch can also declare existing laws as unconstitutional.
People have always been concerned about our judicial system making massive decisions in an undemocratic manner and while there are parts of our nation’s history (Jost). There have been decisions that were dreadful for our nation, Dred Scott v. Sandford; but there are decisions that everyone can agree with in retrospect, Brown v. Board of Education. Also, there are decisions that still divide us as a nation, Bush v. Gore and Roe V. Wade. There are a lot of issues that come from our current judicial system; however, I understand that the problems that come from it are not going to come from any quick fix, and we may have to live with some of them. Looking at the history of the judicial branch of the United States Government, I believe it needs to be limited in its judicial review power, but have certain exceptions where necessary in some cases.
views as to whether or not Judicial review, and the Supreme Court as a whole,
I think that it is important to remember that the framers were fairly new at creating a government unlike any other government in the world and their main concern was freedom from government control. It appears that their biggest mistake was not applying the Bill of Rights to the states as well as the national government. It also becomes problematic in that two men, having different political beliefs and opinions, can interpret the same law in very different ways. Thus, the Supreme Court, established in 1789, which consists of the Chief Justice and eight Associate Justices, is the final interpreter of federal constitutional law. In other words, when there is disagreement concerning constitutional law, the Supreme Court settles it. The power to nominate the Justices is vested in the President of the United States, and appointments are made with the advice and consent of the Senate. This in itself has become conflictual due to affiliations which could certainly sway decisions in favor of one particular political
Judicial activism is loosely defined as decisions or judgements handed down by judges that take a broad interpretation of the constitution. It is a decision that is more of a reflection of how the judge thinks the law should be interpreted rather than how the law has or was intended to be interpreted. There are many examples of judicial activism; examples include the opinions of Sandra Day O'Connor in the Lynch v. Donnelly and the Wallace v. Jaffree trials. Sandra Day argues for the changing of the First Amendment's ban on "establishment" of religion into a ban on "endorsement" of religion. Others include US v. Kinder where our congress passed legislation that would require a minimum sentence for persons caught distributing more than 10 grams of cocaine. Judge Leval used a weighing method suggested by the sentencing commission rather than the method required by congress. The different method used did not trigger the mandatory sentence whereas the congressional method would have.
The reason for much of this power is the principle of judicial review of the actions of the executive and legislative branches of government at both state and federal level against a written constitution and the power therefore to 'interpret' the constitution. The power of judicial review over the states is laid down in the supremacy clause of article III and the power of judicial review over the other two branches of the federal government is implied in the constitution and by several but by no means all of the founding fathers: "A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of thei... ... middle of paper ... ...
A court with judicial review power may invalidate laws and decisions that are incompatible with a higher authority, such as the terms of a written constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. Judicial review was established in the classic case of Marbury v. Madison. under Judicial Review the Court also established its authority to strike down state laws found to be in violation of the Constitution. It plays an essential role in ensuring that each branch of government recognizes the limits of its own power. Judicial Review protects civil rights and liberties by striking down laws that violate the Constitution and it sets appropriate limits on democratic government by ensuring that popular majorities cannot pass laws that harm and/or take undue advantage of unpopular minorities. The establishment of the 14th and 15th Amendments also referred to as the “Reconstruction Amendments” extended new constitutional protections to African Americans, though the struggle to fully achieve equality would continue into the twentieth century.The Fourteenth Amendment created the privileges and immunities clause, applicable to all citizens; and made the due process and equal protection clauses applicable to all persons.The Fifteenth Amendment, prohibits discrimination in voting rights of citizens on the basis of "race,
Whether a judge should be elected or appointed has been a topic for discussion since the creation of a judicial system. Depending on what side of the decision one may be on, there are some challenges that arise from each side. If a judge is elected, will he be judicious in his decision based on the law or based on his constituents? If the judge is appointed, will he be subject to the authority that appointed him, thereby slanting his decision to keep favor of the executive or legislator that appointed him? Mandatory retirement is also a question that brings about challenges. How old is too old? When does a judge become ineffective based on their age?
Judicial review seeks to enforce and uphold constitutional doctrines which govern the UK’s uncodified constitution by scrutinising administrative action. One constitutional function of judicial review is to enforce the rule of law. It can be argued, in defining the rule of law as “negative value...designed to minimised the harm to freedom and dignity which the law may cause in its pursuit of its goals” Joseph Raz characterised judicial review. The principle of which states the executive is to be ruled by the law and subject to it.