Summary: The Imperial Judiciary

The position of the Supreme Court in American society is quite simple: to interpret the Constitution and settle case disputes with the limitations that are binded by our law. While one perspective of the debate states that the court is unbending in their ability to make policy, while the other claims that the court breaks free from these limitations that are binded by our law and are politically dynamic in nature.These are known as The dynamic court and the constrained court are two alternative constructions of the role of U.S. courts in producing significant social reform (Rosenberg, 1991). The balance of these two views rely on the interaction between doctrinal,

The questions presented to the Supreme Court in Raich v. Gonzales (2005) are whether the Commerce Clause affords Congress the power to ban the growth, use, and sale of marijuana under the Controlled Substances Act and whether it can enforce that act against ill people whose doctors have prescribed medical marijuana as a remedy. Writing for the majority in that case, Justice John Paul Stevens employed Justice Stephen Breyer’s strand of pragmatism to answer those questions. The premise of Breyer’s approach is that the Constitution enshrines values and principles, but it grants judges the flexibility to apply those principles to changing circumstances (Yale 11). Hence, pragmatist judges embrace constitutional

Nevertheless, some critics argue that the judidicary, some critics argue that the judiciary are the final arbiters of what is meant by the principle of separation of powers, which therefore provides the judiciary with subordinate levels of power. Moreover Chief Justice Hughes concluding that the ‘Constitution is what the judges say it is’ due to ability to interpret the constitution. In America, although Congress may new laws affecting courts, ultimately judges decide.

Since this is an opinionated examination, I group myself as an Originalist. I trust that we ought to translate the Constitution indistinguishable today from when it was first composed. Originalism is championed for various principal reasons. To start with, it comports with the way of a constitution, which ties and restrains any one era from decision as indicated by the enthusiasm of the times. The Framers of the Constitution of 1787 recognized what they were about, shaping an edge of government for "ourselves and our Posterity." They didn't comprehend "We the general population" to be only a collection of people at any one point in time however a "people" as an affiliation, in reality various covering relationship, through the span of numerous

This document indicates how the value and the role of the Supreme Court revolved over the course of American history. The idea of separation power and three branches of government wasn’t as clear as it is today. In fact, when the United States was first established, during the Philadelphia Convention of 1787, no one was clear on to what extend should the judicial power be

During his opening statement, Scalia employs rhetorical questions in order to elucidate that Americans’ lack of knowledge of the government forces judges to firmly abide by the United States’ unparalleled Constitution. He postulates, “How many of you have read the Federalist Papers?” The reality that “never more than about 5%” of his audience, who are “interested in the law,” has delved deep into the document portrays them as ignorant. With this concern, Scalia expounds upon his originalist ideals and encourages rivaling judges to alter their opinions of a flexible Constitution. Scalia credits his argument through the Framers who illustrated the significance of the Constitution in the Federalist Papers. Due to the fact that Americans are incapable of thoroughly interpreting the government, he attests that judges must abide by the precise words of the Constitution. Scalia advises his audience to

The court case of Marbury v. Madison (1803) is credited and widely believed to be the creator of the “unprecedented” concept of Judicial Review. John Marshall, the Supreme Court Justice at the time, is lionized as a pioneer of Constitutional justice, but, in the past, was never really recognized as so. What needs to be clarified is that nothing in history is truly unprecedented, and Marbury v. Madison’s modern glorification is merely a product of years of disagreements on the validity of judicial review, fueled by court cases like Eakin v. Raub; John Marshall was also never really recognized in the past as the creator of judicial review, as shown in the case of Dred Scott v. Sanford.

The authority of judicial review recognized by Marbury has allowed the court to result revolutionary alteration in our sympathetic of constitutional supplies. This power hasn’t unpredictably, haggard both censure and praise over the court’s antiquity, but it has never been a supremacy totally beyond the jurisdiction of the other divisions of government. Since the President’s authority to appoint and the Senate’s authority to approve Supreme Court Justices to the infrequent great efforts of constitutional alteration, the court remains resolutely entrenched in our Constitution’s system of checks and balances. Meanwhile judicial review has certified that the Supreme Court’s justices, once established, have adequate power to apply their individuality from the political divisions and apply constitutional bounds on their powers. The Court’s power in constitutional clarification rests in part on general

I prefer to the approach of living when interpreting the Constitution. I think the majority of law should change and evolve over time as the society advances constantly. The Constitution was established over two hundred years and it was created to deal with the issues at that time. With time passed by, some terms were not suitable for the current issues. The pioneers who drafted the Constitution could not predict the changes on the technology, the economy, the international relationship and the social media. It was not realistic to make the outdated rules to guide the life of people invariably. Changing the law with the time was a positive practice, so that the Constitution could better fit the society.

In this essay I will try to explain and critique the two dominant methods of constitutional interpretation. Which are originalism and non-originalism. I will do this by taking help from “How to Read the Constitution” by Christopher Wolfe, and different source’s from Internet. I will start by giving what Wolfe says originalism is, and then I will give some background to other ways to interpret the constitution, and the founders and interpretation and I will finish up with my view on originalism and non-originalism and the critics to that.

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.

Some judges in their obiter dicta have declared their inclination to disregard the Parliament’s legislative objectives, and therefore limit parliamentary sovereignty if the rule of law is vulnerable or if the circumstances demand “a principle established on a different hypothesis of constitutionalism” . They have also suggested that, while the British Constitution is dominated by parliamentary sovereignty, “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based” . This represents a possibility of stretching the dominance of the rule of law in constitutional law so that it becomes more powerful than parliamentary sovereignty in the British Constitution .

The legal-formalist belief in the capacity of legal rules to determine the outcomes to legal disputes without having recourse to the judge’s political beliefs or sense of fairness has been severely criticised by, amongst others, legal realists and critical legal studies scholars. This assignment will firstly address what legal formalism entails, following which the criticisms of legal formalism will be discussed and lastly whether legal formalism can impede the transformative ideas of the Constitution. All of the above will be analysed to determine the role of legal formalism today.

The just exercise of political power is conceived of as resting upon constitutional principles. Constitutional principles are a position from which we operate justly. However, what constitutes as just? Throughout history political power derived from many historical foundations that were deemed just based on the society that upheld those principles. This notion is evident throughout the development of constitutional doctrines in Greek democracy, Aristotle’s political theory, Roman Republicanism, and English Constitutionalism.

The enactment of both interim and final Constitutions ushered in a new approach to statutory interpretation. In this essay I argue that the statement made by the court in Daniels v Campbell 2003 (9) BCLR 969 ( C ) at 985 is TRUE.