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The Unique Power of the Judiciary

The Unique Power of the Judiciary . Concept of Judicial Review. Background : How is the Court to be structured? Colonial System Constitution vague Judiciary Act of 1789 Transfer of legal authority from states to Federal government Chisolm v Georgia .

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The Unique Power of the Judiciary

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  1. The Unique Power of the Judiciary

  2. Concept of Judicial Review • Background : How is the Court to be structured? Colonial System Constitution vague Judiciary Act of 1789 • Transfer of legal authority from states to Federal government Chisolm v Georgia

  3. 11th Amendment weakened the power of the Judiciary • Who’s who • Marshall appointed Chief Justice of Supreme Court Facts of the Case/Decision Significance: • Marshall established the courts power to declare acts of Congress and the President unconstitutional if they exceed the powers granted by Congress • The Supreme Court became the “umpire” of the Constitution • Chief Justice elevated to status comparable to President and Speaker of the House.

  4. Judicial Self-Restraint • Judges have different “philosophies” regarding how they should use the latitude they have in interpreting ambiguous provisions of the Constitution. • Judicial Self-Restraint: • Defer to lawmaking decisions of elected officials. • In particular, judges should not substitute their political and political preferences for those of elected officials. • Also stare decisis(“let the decision stand”) and the importance of precedents

  5. Judicial Activism • Judicial Activism: in general, all judges more or less endorse the norms of self-restraint but “activists” feel less bound by them. • The judiciary is co-equal to other branches, so judges should not be especially deferential. • Judges have special competence in interpreting laws and the Constitution. • Judges should be willing to substitute their constitutional judgments for those of elected officials, especially • Judges should be willing to overrule mistaken precedents and adapt their interpretations of the Constitution to changing times.

  6. Judicial Self-Restraint vs. Activism Today these conflicting postures are sometimes characterized as • Strict construction / original intent: • “literal meaning” of the words in the Constitution • “intent of the framers” • vs. loose construction / evolving interpretation: • The Constitution is a flexible and evolving document whose operational meaning changes as society change This is NOT necessarily a “liberal” vs. “conservative” conflict

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