“Justice is not to be taken by storm. She is to be wooed by slow advances. Substitute statute for decision, and you shift the center of authority, but add no quota of inspired wisdom.” —— Benjamin N. Cardozo. In the view of many citizens, Supreme Court Justices are like legal machines, interpreting constitution to promise American people of equal justice. Throughout American history, numerous case laws have established the pattern of judicial decisions of U.S., thus making little room for new legislation. However, even Supreme Court Justices are human beings, who can be influenced by various factors. It’s not that simple to determine the inclination of a justice to his or her religious belief, political philosophy and ideology. The essence of judicial process requires a justice to vote under any circumstance based on law, precedents and most important, constitution. No Supreme Court Justice will say that he or she has personal or political
A constitution is a written document that sets forth the fundamental rules by which a society is governed. Throughout the course of history the United States has lived under two Constitutions since the British-American colonies declared their independence from Great Britain in 1776. First in line was the Articles of Confederation (1789-1789) followed by the Constitution of United States of America (1789-present). The Articles of Confederation was the first formal written Constitution of America that specified how the national government was to operate. Unfortunately, the Articles did not last long. Under the words of the Article’s power was limited; Congress could make decisions, but had no power to enforce them. Also the articles stated
Arguably one of the most influential legal theorists of the 20th century, Ronald Dworkin’s dealings with law’s interpretation and integrity has lead to inevitable contradictions with that of positivist ideology, with his work essentially revitalising a method of thinking that had long been considered dead and buried. Perhaps most notoriously, Dworkin combated the positivist theory of his former teacher and predecessor as Professor of Jurisprudence at Oxford University, H.L.A. Hart. When comparing the two, it is apparent that Dworkin and Hart disagree on a plethora of issues, however there exist several
The Preamble is an opening statement of the U.S. Constitution. The Preamble replaced the Articles of Confederation. The 7 principles of the U.S. Constitution is popular sovereignty, republicanism, federalism, separation of powers, checks and balances, limited government, and individual rights. It was agreed by the representatives. This is about the U.S. Constitution.
Since the ratification of the Constitution, more than 11,000 amendments have been proposed. The Constitution of the United States of America was Officially ratified in 1789. This makes the document over two-hundred years old. Since the time of its writing and eventual ratification, the document has been amended and interpreted in many ways. Whether it be prohibition to the abolition of slavery. The Constitution has been constantly updated over time. It has not laid stagnant with the time. The Constitution has remained the document off of which we have based our country for many years. A major question that has been posed is, why do we as a country still feel bound to this document written so many years ago? The reasons are fairly simple. The Constitution of the United States can and has been over many years amended, the laws and thoughts of a people can be expressed through the Constitution, and the constitution has functioned, with a few bumps in the road, fairly well over the last two-hundred years. The people of the United States should still stand behind this Constitution because it infact still serves us well today in many ways. A few being that it can be amended and “Fixed”, and another being that it does still protect our rights as citizens.
In August 2015, the case Miller V Davis brought to light the complicated relationship between law and morality. Indeed, Mrs Davis a county clerk in Rowan county (Kentucky), is being sued for not delivering marriage licences to same sex couples as she believes that homosexuality is morally wrong. Thus, despite the fact that same-sex marriage has been made legal by the U.S Supreme Court since June 2015. Ought individuals to apply the law though it is in inadequacy with their moral beliefs? Do the law should be totally free from any moral influence? Many legal scholars have argued on these questions, as well as trying to define the terms “law” and “morality”. While no one has agreed to a universal definition, law can be defined as a “body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects”. On the other hand, morality is referred to as an “ethical wisdom” , the set of common values unifying a society. This essay will discuss the role of morality in the law, while analysing different legal school of thoughts arguing on the topic. First of all, positivists such as Bentham, Austin and Hart, argued that morality should not interfere with the law as it is created by a legitimate authority. On the other hand, naturalist theorists, such as Aristotle, Fuller and Dworkin, believed in the existence of a “higher law”, highly influenced by morals, has to be integrated in a legal system
Since the advent of human government, one of the principle fears held by the constituents of the government has always been to prevent any form of tyranny or abuse within it. Tyranny can be loosely described as one person or a group of people having total power in a government leading to the subjugation and oppression of people’s rights. Many new nations wish to eliminate any aspect of their government that may eventually lead to tyranny. The United States was no different in this respect; the framers of the Constitution longed to have no signs of tyranny in their government because they had gone to war with Britain for that very reason. In 1787, a group of fifty-five delegates came from
“When people fear the government, there is tyranny. When the government fears the people, there is liberty.” By 1787, the enlightened statesmen began to understand and accept the flaws of the Articles of Confederation. It was too weak and did not allow the new nation’s economy to thrive. The system under these articles failed to create a strong central government and even lacked a court system. One major weakness of the central government was that they could not tax the states and this lead to an uneven distribution of power, and the states became overwhelmingly powerful. The challenge was to write a new constitution that was strong enough to hold the country and states together, secure the rights of the people, and not allow a single
Since the founding of the American Democracy, partisanship has always been a major problem when it comes to political aspects of the law. The Constitution was designed to implement laws into our country that would make our governing body run smoother with fewer conflicts. However, when dealing with Democracy based on the “people’s word” it is hard to avoid such conflicts. Since each citizen in our country has the right to freedom of speech and thought, the interpretation of various parts of the Constitution have become heavily analyzed when dealing with cases of various crimes that happen in the United States. Each judge on the Supreme Court is entitled to his or her own political ideology so it is a constant debate as to whether a judge has biases on a particular issue based on political views. These biases weave through our justice system creating a disarray of views and arguments that always reflect back on the judges and their presentation, or lack their of, of American ways.
Atop twenty-four Corinthian columns at One First Street in Washington, D.C., lie a promise to our nation, four words: “equal justice under law”. These words, abundant with virtuous intentions, are the parameters of jurisprudence that the Supreme Court must apply when considering its cases. A founding principle of this nation, seen in documents as early as the Declaration of Independence, and affirmed through the Equal Protection clause of the Constitution and the Thirteenth, Fourteenth, Fifteenth and Nineteenth Amendments thereto, promotes the idea of equality in justice and blindness to the individuality of the litigant. This idea is central not only as a function
This essay is compiled to review and apply Ronald Dworkin (Dworkin) theory and how his theory was incorporated to assist in constructing laws. In light of Dworkin’s theory, significant areas such as moral principles, legal principles, rights and rules will be explore to understand the influence that these attributes had, in essence of creating laws.
The article called “Our Imbecilic Constitution” by Sandford Levinson, is an interesting piece that includes the author’s opinions and criticism about the U.S Constitution and why it should be amended to meet the needs of this generation. One of the author's main points focused on the effects of the presumed outdated U.S constitution within our current government. (Explain) Secondly, the author offers a contrast between the U.S. Constitution and the states Constitution. One example from the article includes the state of California. The state of California Constitution was considered dysfunctional and stupid to the U.S Constitution in its unaltered conditions. The author says that even though this so-called strong system of separation of power and “check and balance”
According to Antonin Scalia there are two types of approaches to interpreting the Constitution: originalist and living. Which approach do you believe the Court should take? Why? How does this approach affect the policymaking process?
Traditional Originalism led the court as the method of constitutional interpretation until the late nineteenth century. Judges were compelled to interpret the Constitution based on the original meaning of the provisions. The Originalism view interprets the constitution line by line exactly as the founders would have found it. Later, during the early twentieth century, progressives in the legal community proclaimed that due to the changing social environment as time goes on in the nation, the political system needed to be reconfigured. They thought that the political system needed increased national government authority and a modern administrative state. They also thought that the increased national authority and modern administrative state wouldn’t work well with the traditional Originalism interpretation of the constitution. After long political battles in and out of the court, they won the argument and the Constitution would be adapted without formally amending it. Debates were waged over whether or not the Constitution could be changed through interpretation instead of the originalist requirement of amendment, and over whether or not the Constitution was to be viewed as living. The notion of a “living constitution” was developed, and slowly set precedent as landmark cases made their way through the supreme court, and the interpretation of the constitution was put to the test.
This shows us that the idea that Dworkin has of moral principles playing a role in judicial decision-making and interpretation is correct to a large extent, and thus the use of subjectivity is accurate and apparent.