"A sanction is essential to the idea of law, as coercion is to that of Government," he wrote in his paper Vices of the Political System of the United States (April 1787). The Confederation, he continued, "being destitute of both, wants the great vital principles of a Political Constitution. Under the form of such a constitution, it is in fact nothing more than a treaty of amity of commerce and alliance, between independent and Sovereign States." Madison called the lack of coercion "a fatal omission" in the Confederation. On February 21, 1787, Madison and Alexander Hamilton, Washington's former assistant who believed passionately in a powerful central government, persuaded Congress to name delegates who would revise the Articles of Confederation.
Alexander Hamilton supported the proposed system and expressed his belief that the judiciary did not have too much power by any means. Brutus was more concerned that the court would simply side with the government and would therefore have too much power over the states. In 1803 one of the biggest landmark cases ever reached the Court, Marbury v. Madison. This case was not directly about the power of the court, but similar to most Supreme Court cases, it turned into a debate about something more crucial. By reading John Marshall’s opinion on the Marbury v. Madison case, it is apparent that Brutus originally had the better idea about the Supreme Court’s power due to his overwhelming wisdom and excellent foresight into what the judiciary would eventually become.
If government leaders know that they will always hold the majority no matter how poorly they govern, there’s no incentive for them to consider the interest of the minority and lead to tyranny. Ultimately, Madison puts forth the most compelling argument in Federalist 10 saying that multiplying the diversity of interests in a large republic is the key to breaking these dangerous majority factions. This can be accomplished by with the aid of separation of powers and checks and balances in government that is established by the Constitution. Other great political theorists who discuss liberty and the concept of justice are John Rawls and John Stuart Mill. In their works, they attempt to solve the problems associated with justice, liberty and individual rights.
Croly’s opinion, while not revolutionary, was still regarded with suspension by many people in 1909 (the year Croly’s essay was published). People who were wary of a nationalistic government and a unified frame of mind had a good argument against Croly’s essay. Much of this essay focuses on this argument against Croly’s presuppositions regarding the “progressive” outcome of nationalization. First off, Croly bases everything in his argument on the claim that the “national interest” is predicated on democratic principles (as cited in Eisenach, p19). This is why people should have nothing to fear from a nationalistic government: i... ... middle of paper ... ...al level (Eisenach, viii).
The American Judicial system has proved to be more troublesome and controversial than the founding fathers would have imagined. The debate on whether judicial activism or judicial restraint is the best idea for the country to follow has been long living. Both judicial activism and judicial restraint are described as types of judicial review. While both can be beneficial, Judicial activism is clearly more important than the other. Judicial restraint is “The judicial philosophy whose adherents refuse to go beyond the text of the Constitution in interpreting its meaning.” In other words, judicial restraint is an idea that one should not interpret laws differently than what has been expressed in the Constitution.
But over time, the Constitution and the Supreme Court commissioned to keep and expound it began to use the clauses and provisions of the document to fight out partisan political issues and made the Constitution a political tool for different ends. Those ends were not always bad, often they were quite good. But the legitimate place for such functions was within the other two branches of government in which elected representatives were expected made such political decisions. Federal power was expanded tremendously but not without pushback from within and without. The meaning of Federalism still remains up for grabs in the ever-changing world of American politics.
Yet he also says that the originalism readings will date the constitution and make it less relevant. This is all in the same vein as calling for an institution that protects the rights the people and limits the majoritarian aspects of democracy, so in an essence, creating a working constitutional democracy. I feel that the answer that Dworkin is searching for is the judicial branch. Waldron feels the same, noting the differences in Dworkin’s essay as well. Dworkin says that “legislature is not the safest vessel for protecting the rights of policy unpopular groups,” and this is where I can understand some point that he trying to make, because legislature is not the safest vessel for protecting minority groups, the judicial branch is.
He also believes in a weak central government, an idea of a Democratic-Republican, having the states be control of everything internal and only having the central government in charge of foreign affairs. In Document B, Jefferson's letter to Samuel Miller, Jefferson stated that the president has no authority over religious exercises. This was an exact belief of a Democratic-Republican. Not only did this document states that the central government should be weak, this also states the belief of a strict interpretation of the Constitution. Jefferson demonstrated his beliefs through the government primarily.
Originally designated as the weakest of the three branches in government by the framers of the Constitution, the Judiciary has accumulated an increase in political influence through judiciary review and has proven to be an essential institution in the separation of powers as well as an active participant in the system of checks and balances. According to Hamilton in Federalist 78, the judicial branch has the least amount of power among the three branches of government. The Judiciary is “the weakest of the three departments of power, that it can never attack with success either of the other two” (Woll, 410). The enumerated powers of Congress include the authority to collect taxes, borrow money, regulate commerce, and pass federal law. These assigned powers permit Congress to control the economy and regulate the public by adopting legislations.
Its members are not elected which violates the first rule of democracy, the freedom to choose. Neither the justices have a set term for serving the Court, nor are they directly held responsible for the mistakes that happen. This Supreme judicial body also “strikes down decisions by the elected officials, thus overruling the majority” (Cengage Learning 1). The main reason behind people criticizing the court for its anti-democracy is its power to strike down laws. However, the presence of judiciary is the key to democracy as the other two branches cannot survive without a law implementing