The United States promotes itself as being based on the principle of popular sovereignty, that is, the people’s capacity for self-government. The latter is secured by the existence of the higher and fundamental law that is the constitution. Indeed, article VI section 2 of the constitution states that it is the «supreme law of the land» by which the judges shall be bound. This fundamental law was «establish[ed] and ordain[ed]» by the people of the United States according to the preamble of the constitution; it thus follows that the people are sovereign. Nevertheless, one has to investigate the device by which it is assumed that the people have, in effect, established the constitution. One can presume, with no great difficulty, that it is not feasible to draft a constitution by concerting every individual of the United States on what should be included in it. The Philadelphia convention of 1787 assembled delegates from all states to discuss the drafting of the constitution. Although the delegates were representatives of their states, it is the process of ratification that substantiated the republican principle of popular sovereignty. Thus, it is the ratification of the Constitution that enables it to be «empowered by the people [and gives it] a truly legal authority» (Paine, 28).
One could initiate a debate on the process of ratification and its true value in assessing popular sovereignty. However, such an argument implies that one further examines the nature of the people, therefore leading us to digress from the purpose of this paper. Hence, one is accepting that the ratification process does account for the manifestation of popular sovereignty, thus confirming that the Constitution was «establish[ed] and ordain[ed] by the peo...
... middle of paper ...
..., we have seen that such a doubt is inherent to the concept of popular sovereignty and the meaning of «the people». On the contrary, it seems that judicial review furthers republican principle, as the Supreme Court is the guardian of the constitution, that is, the fundamental law which accounts for the sovereignty of the people.
Cited Works:
Andreas Hess, “Republicanism,” ch. 3 of American Social and Political Thought: A Concise Introduction (New York: NYU Press, 2000), pp. 28-36
Hamilton, Alexander, James Madison, John Jay, and Michael A. Genovese. The Federalist Papers. Basingstoke: Palgrave Macmillan, 2009. Print.
Hamilton, Alexander, James Madison, John Jay, and Terence Ball. The Federalist. Cambridge, U.K.: Cambridge UP, 2003. Print.
Paine, Thomas, and Philip Sheldon Foner. The Complete Writings of Thomas Paine. New York: Citadel, 1945. Print.
In the late 1700s, it was apparent that the Declaration of Independence and the Articles of Confederation did not establish the type of government needed to keep the nation together as a nation-state. The American people needed to find a more effective way to govern themselves and this was no easy feat. Most Americans had varying political thoughts in the 18th century. The challenge because how to best take care of the masses in a fair and equitable way. In May 1787, a group of delegated appointed by the state governments met in Philadelphia for The Constitutional Convention. This group decided they could not revise the Articles of Confederation and decided to create a reasonable national system. This
In 1789, the Confederation of the United States, faced with the very real threat of dissolution, found a renewed future with the ratification of the Constitution of the United States. This document created a structure upon which the citizens could build a future free of the unwanted pitfalls and hazards of tyrannies, dictatorship, or monarchies, while securing the best possible prospects for a good life. However, before the establishment of the new United States government, there was a period of dissent over the need for a strong centralized government. Furthermore, there was some belief that the new constitution failed to provide adequate protection for small businessmen and farmers and even less clear protection for fundamental human rights.
Madison, declared the power of the courts to interpret the Constitution and affirmed the power of judicial review. The power of judicial review averted the judiciary branch of the inherent weakness and lack of equality in power among the three branches of government. The independence of the Supreme Court is paramount in protecting the civil liberties granted to citizens. The judicial power afforded by means of the doctrine of judicial review is not superior or above the other two branches of government. The Supreme Court’s duty is to nullify legislative acts contrary to the Constitution. Hamilton expounds the power of the courts in the Federalist Papers No. 78, “it only supposes that the power of the people is superior to both”, and judges should regulate their decisions by the fundamental laws, (Hamilton, 2008). The Supreme Court’s duty is to nullify legislative acts contrary to the
The U.S government has operated for about 200 years on the basis of Constitution written in 1787 and since then, there have been several debates as to whether the framing of this document was an elitist or democratic process. The framers, collectively were an elite, but the reason for why they wrote the Constitution is not fully known. John P. Roche suggests the Constitution was written upon the idea to establish an effective and controlled national government that would overcome the weaknesses of the Articles of Confederation and not so much to limit the power of popular majorities and protect their own property interests.
People debated on the illegality of the Constitution’s formation. Those who were involved in the public debate about the Constitution considered the creation of the document as an illegal act. Some Anti-Federalists believed that the men sent to the constitutional convention had surpassed the limits of the assignment originally given to them, which was to modestly adjust the Articles of Confederation. Federalists disputed that the articles needed to be eliminated rath...
The first step of the Constitution was undemocratic. No popular vote was taken either directly or indirectly on the proposition to approve a convention (Beard 14). The group of men who wanted the convention was skillful in getting it approved in that their proposal of it was a surprise. This gave the Federalists an upper hand. Their opponents, the Anti-Federalists, could not refuse to a discussion of possible, and perhaps necessary, reforms. By refusing, they could lose the support of the public very easily (Roche 18).
In William Hudson’s book, American Democracy in Peril, he writes about different “challenges” that play a vital role in shaping the future of the United States. One is the problem of the “imperial judiciary”. Hudson defines its as that the justice system in the United States has become so powerful that it is answering and deciding upon important policy questions, questions that probably should be answered by our democratic legislatures. Instead of having debates in which everyone’s voices are heard and are considered in final decision-making process, a democratic-like process; we have a single judge or a small group of judges making decisions that effect millions of citizens, an “undemocratic” process. Hudson personally believes the current state of judicialized politics is harming policy decisions in Americans. According to him, the judicial branch is the “least democratic branch”, and ...
ruled by a similar group to that of our Supreme Court because, the members of
Some people have always wondered whether the making of Constitution of the United States was, in fact, supposed to happen at the Constitutional Convention or if it was even supposed to be drawn up in the way it was. In this essay, I will summarize to different views on what went on at the Constitutional Convention and how the Constitution of the United States come about. I want to emphasize that none of these views or theories discussed in this essay are my own. The convention that is referred to was held in Philadelphia, Pennsylvania. It began In May of 1787.
The Supreme Court and Federal court have the same authority as in the Constitution. This system is called checks and balances which prevents the sole power of any one of the three branches. In addition, this power can be divided between the states and Federal government. The Federal government’s role in “domestic and foreign affairs and how they have grown” (Fe...
In creating the Constitution, the states had several different reactions, including a rather defensive reaction, but also an understanding reaction. As a document that provided the laws of the land and the rights of its people. It directs its attention to the many problems in this country; it offered quite a challenge because the document lent itself to several views and interpretations, depending upon the individual reading it. It is clear that the founders’ perspectives as white, wealthy or elite class, American citizens would play a role in the creation and implementation of The Constitution.
constitutions of most of our states assert, that all power is inherent in the people; that they
Dahl conducted his study on the decision making of the Supreme Court and whether the Court exercised its power of judicial review to counter majority will and protect minority rights or if it used the power to ratify the further preferences of the dominant “national law making majority.” From the results of Dahl’s study he builds numerous arguments throughout his article, “Decision-Making in a Democracy: the Supreme Court as a National Policy-Maker”. In what follows, I will thoroughly point out and explain each of the arguments that Dahl constructs in his article.
The debate over the legitimacy of the role of judicial review in the United States constitutional democracy has been around since the creation of the Constitution. The power of judicial review can be considered antidemocratic because it isn’t directly stated in the Constitution, of the authority of unelected judges and the fact that it sometimes resists the majority. Despite these claims, I believe judicial review is a constitutional doctrine, which arose from the historical process of persuasive reasoning in rulings, institutional prestige, the cooperation of political branches, and general public opinion.
The term ‘judicial activism’ means a court decision suspected of being built or based on individual, political or private reflections instead of the actual law. In America, judicial activism is considered either as conventional or as plentiful. The original retro of American legitimate antiquity was categorized by traditional justice involvement where the Central Supreme Law court was reluctant to allow the conditions or the assembly to permit lawmaking that would control social or financial businesses. Judges should not read between the lines or add their own experiences when it comes to determining what the verdict will be. The United States Constitution is direct, with plainly written sentences and all judges should follow those guidelines.