The Basic Structure doctrine still has a very nebulous meaning and what forms part of it is determined on a case-by-case basis. Judicial review, separation of powers and federalism have been previously been held by the Supreme Court to be part of the Basic Structure. It is however used only when testing constitutional amendments and not for ordinary laws. The court in the current case however applied the doctrine to examine an executive action of the judiciary. The court further made the remarkable statement that,
Any law that abrogates or abridges such rights would be violative of the basic structure doctrine. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account in determining whether or not it destroys the basic structure.
The court made this observation at the conclusion of the case without either examining the previous case law in this regard (the more accepted position in law being that the Basic Structure doctrine is to be applied only for constitutional amendments) or providing detailed reasoning for the statement. ...
Consider your and the court’s response to the above question. Would your decision be different if it could be shown that, in a certain small,
In Federalist 78, Alexander Hamilton argued that the Judicial Branch is the “least dangerous to the political rights of the Constitution" and that it is “beyond comparison the weakest of the three departments of power” since it has “neither force nor will, but merely judgment.” [*] While it is true that Hamilton wrote the Federalist Papers as propaganda to garner support for the Constitution by convincing New Yorkers that it would not take away their rights and liberties, it is also true that Article III of the Constitution was deliberately vague about the powers of the Judicial Branch to allow future generations to decide what exactly those powers should be. In the 1803 case of Marbury v. Madison, the Supreme Court, led by Chief Justice John Marshall, established the Court’s power of judicial review. However, as Jill Lepore, Harvard professor of American History, argued, “This was such an astonishing thing to do that the Court didn’t declare another federal law unconstitutional for fifty-four years” after declaring the Judicial Act of 1789 unconstitutional in Marbury v. Madison. [*Jill Lepore] Alexander Hamilton was incorrect in his assertion that the Judicial Branch is the least dangerous to political rights and the weakest of the three government branches because judicial review has made the Supreme Court more powerful than he had anticipated. From 1803 to today, the controversial practice of judicial activism in the Supreme Court has grown—as exemplified by the differing decisions in Minor v. Happersett and United States v. Virginia—which, in effect, has increased the power of the Supreme Court to boundaries beyond those that Alexander Hamilton stated in Federalist 78.
After the preamble the second part of the Constitution is the seven articles which describe the elements of the Constitution. One of the articles gives the legislativ...
Article 2: Reckless disregard for the principle of separation of powers, and specifically disregarding the authority of the Supreme Court.
The Supreme Court exercised its interpretation of the Constitution and found that a violation of the First Amendment was apparent and therefore, also a violation of the fourteenth Amendment showing that due process of the law was not given.
1. The court stated that they did have power to hear this case: "Since the court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has authority to interpret claims with respect to powers alleged to derive from enumerated powers."
Section 2. “This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several St...
"This inquiry will naturally divide itself into three branches- the objects to be provided for by a federal government, the quantity of power necessary to the accomplishment of those objects, the persons whom that power ought to operate," writes Alexander Hamilton in the Federalist #23 in reference to the separation of powers. The basic concept here is the idea of the federal government being divided into three separate branches that would balance excessive democracy through a system of checks on each other. The three branches, respectively known as the legislature (Article I), the executive (Article II), and the judiciary (Article III), were designed to entice the opponents of the Co...
There are two methods one can use when interpreting the Constitution. The first method includes not doing something unless the Constitution says that one can (i.e. unless the Constitution says one can do something, then one cannot). The other is where one can go ahead and do something if the Constitution doesn’t say one can’...
One of the most unique and vital features of the American government is the establishment of a constitution. This constitution is a result of the fear of tyranny and the idea of rights that are unable to be infringed upon. The Constitution of America became the base of all law and decisions made in court. It gives us the ability to propose and pass laws, who can sit in power, what states can and can’t do under the supremacy clause, disburse funds, etc. In order to truly understand how the constitution can be implicated and interpreted, it is important to understand where it came from, and what Article One of the constitution states about governmental organization, and the Legislative branch.
According to the U.S. constitution, fundamental rights hold a special significance under the Fifth and Fourteenth amendments. The Fourteenth amendment states that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without Due Process of law; nor deny to any person within its ju...
The American concept of federalism implies balance. Consequently, a system of checks and balances created by a division of powers among the executive, legislative, and judicial branches of the national gover...
...ral and political notions. While this tendency of the Court is deplorable, the truth is inescapable that the cases allowing for many of our most basic rights cannot be justified simply by reference to the Constitution. Hence, the Court has invoked the generality of the Constitution to define and defend vested rights and general principles of democratic society. To conclude, without the ability to move beyond the explicit text of the Constitution, a great number of crucial decisions in U.S. history must be overturned. The simple fact is that the interpretive model cannot allow for the justification of many of our most sacred rights. While criticisms as to the justification of the power of the Court to discern the values of contemporary society are legitimate, history as well as the citizens of this society have long declared the non-interpretive model superior.
The strict supremacy of statute over judicial decisions and a tradition of literalism in statutory interpretation, 2. Where no legislation exists, the courts are bound by the doctrine of precedent in accordance with a strict hierarchy of judicial authority, 3. In the absence of a relevant precedent, the judges will be guided by legal principle and reasoning by analogy, and 4. There is a clear way of distinguishing the ratio of a case. A key feature of the unwritten constitution is ‘the separation of powers’.
One of the biggest threats to a thriving country is a tyrannical government. To prevent this, the Founders declared that the power of the government must be separated. This principle, the Separation of Powers, states that, to prevent tyranny, one governmental branch cannot have supremacy over the country. The power must be divided among three branches. These are the executive, judicial, and legislative branches. The Separation of Powers is of equal importance now as when the Constitution was written because it prevents tyranny.