Justices must by necessity implicitly or explicitly consider questions of wisdom, justice, social harm and morality when deciding if a statute is unconstitutional. They should ensure that all these considerations are rooted in constitutional principles and constitutional questions. Society should not imagine these considerations are not present in judicial reasoning, nor should justices be ruled by them. The questions justices properly ask when deciding if a statute is unconstitutional are shaped by a moral vision of the proper role of the judiciary in representative democracy.
There are times when the correct constitutional reading of a challenged statute is explicit and uncontroversial. In these cases, it would be extremely harmful to the legitimacy of both the court and the constitution to rule in opposition to the uncontroversial reading. However, abundance of clarity leading to homogeneity of opinion is not the norm. In the majority of cases, justices must make choices about how to read the constitution, which precedents are most relevant, what principles to draw from those precedents, whether those precedents should be upheld or modified, when the arguments of dissenting opinions are more convincing than the majority, the natural meanings of words, and the parsing of punctuation. When faced with these questions about the application of the constitution, justices have further choices to make about how best to rule. One choice they might make is to apply an academic theory of interpretation. For example, a justice might ascribe to the original meaning school which holds that the text should be read by modern observes as it would have been by reasonable people when it was written. By contrast, a justice might instead ascribe t...
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...overnment is by “consent of the governed”. This principle is applied to the judicial system by limiting the power of judges, and ensuring as many decisions as possibly are made through the democratic process. In the legislature, the most directly democratic of social intuitions, laws are written. It should be in the legislature where the questions of morality, which guide the writing of laws, are publically debated. A system of justice which ignores this moral foundation may be more flexible to punish grossly immoral behavior in individual cases. This advantage in flexibility is not worth the cost in consistency, predictability, and moral legitimacy to the law as a whole.
Works Cited
Regina v. Instan (1893) 1 QB 450
United States. Senate. Confirmation Hearings on Federal Appointments, Committee on the
Judiciary. 108th Cong., 1st sess. Washington: GPO, 2003.
...ice it when the said sources contain no clear information regarding the topic at hand. In situations like these, the Supreme Court is essentially free to do whatever it wishes, and often exercises judicial activism. Thus, there is a disconnect that exists between the theoretical practice of judicial review, which is reasonable and justifiable, and the actual practice of judicial review that is often used in the Supreme Court, which may potentially allow the Judiciary to surpass the powers granted to it in the Constitution and as stated by Hamilton in Federalist 78. There are two main sides to the debate about how Justices should approach judicial review: the strict constructionists, who advocate for strict adherence to the text of the Constitution when deciding a case, and the loose constructionists, who advocate for more freedom for the judges when deciding a case.
Federalist no. 78 is persistent in its sort of justifications of the Constitutions vagueness. The letter claims that the judiciary branch is of the least danger of t...
1. Does the Supreme Court have the responsibility to interpret the constitutionality of a case, that is brought up for review as it is presented at its face value, or should it consider the ultimate impact that it could have ...
Gunther, G. (1991). Constitutional Law. Twelfth Edition. New York: The Foundation Press, Inc. pp. 1154-1161.
Judicial Tyranny was a very thought-provoking read and even though the reader may agree with Mr. Sutherland’s view point, a rational thinker must admit that he and his colleagues do the very same thing they accuse the federal courts are doing - forcing their beliefs and opinions (court rulings) on the reader. It can be reasonably argued that some of the statements written were just as radical and antagonistic as it accused the judiciary of being. Even though I may agree with most of what was written, as an unbiased reader I have to admit that the work was presumptive and does not fully address other important issues concerning the federal court system.
The governance of our present day public and social order co-exist within the present day individual. Attempts to recognize the essentiality of equality in hopes of achieving an imaginable notion of structure and order, has led evidence based practitioners such as Herbert Packer to approach crime and the criminal justice system through due process and crime control. A system where packer believed in which ones rights are not to be infringed defrauded or abused was to be considered to be the ideal for procedural fairness. “I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.” Thomas Jefferson pg 9 cjt To convict an individual because proper consideration was not taken will stir up social unrest rather then it’s initial intent, when he or she who has committed the crime is not punished for their doings can cause for a repetition and even collaboration with other’s for a similar or greater crime.
Remy, Richard C., Gary E. Clayton, and John J. Patrick. "Supreme Court Cases." Civics Today. Columbus, Ohio: Glencoe, 2008. 796. Print.
The power the Supreme Court has today stems from the case of Marbury v. Madison: a hearing
...t that, invariably in the three decisions that gave states more rights, a need to curb national government supremacy was a more important factor than the Tenth Amendment. Indeed, the dual federalist approach was not the major factor either because the three aforementioned cases were all decided more as a response to the expansion of national supremacy than a desire to exert states rights. The Supreme Court has not always been capable of following the correct interpretation of the Constitution because of the effects of prior cases and political influences. In order to do so in the future, the Supreme Court need only remember that the constitution was meant to-- enhance national government power, the national government is supreme when its laws are made in the pursuance of the Constitution, and the Tenth Amendment gives the states a passive and not aggressive power.
Hall, Kermit L, eds. The Oxford guide to United States Supreme Court decisions New York: Oxford University Press, 1999.
This theory looks at how the sovereign and its officials created the law based on social norms and the institutions (Hart, 1958). However, hard cases such as this makes for bad law, which test the validity of the law at hand based on what the objective of the law was in the first place. The law should not be so easily dismissed just because it does not achieve justice in the most morally sound manner (Hart, 1958). Bentham and Austin understood that there are two errors in the way law is understood, what the law is and what the law should be (Hart, 1958). He knew that if law was to become what humans perceived the law ought to be, the law itself would be lost, but he also recognized that if the opposite was to occur where the law replaced morality, than any man would escape liability and there would be no retribution (Hart, 1958). This theory looks at the point of view of the dissenting judge, Justice Gray, which is that the law is what it is, even if it may conflict with morals. Austin stated that “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry (Hart, 1958).” This case presents the same conflict that Bentham and Austin addressed, that the law based on the statute of the
views as to whether or not Judicial review, and the Supreme Court as a whole,
“ ….Judgments, right or wrong. This concern with concepts such as finality, jurisdiction, and the balance of powers may sound technical, lawyerly, and highly abstract. But so is the criminal justice system….Law must provide simple answers: innocence or guilt, freedom or imprisonment, life or death.” (Baude, 21).
The Constitution or “the supreme law of the land”, as stated in article six in the constitution is very complex. It is complex not only in its actual text full of ambiguities and vagueness, but it becomes more complex when used in practice and interpreted. Constitutional interpretation is significant because it is what decides what the constitution actually means. Constitutional interpretation is a guide judges use to find the legal meaning of the constitution. The interpretation of the constitution and amendments can make a big impact on outcomes. In our government and Judiciary, we see commonly see originalism being used to interpret the constitution and amendments, but there
Law, ?a governmental social control? (Black 2), is a quantitative variable that changes in time and space and can be defined by style: penal, compensatory, therapeutic or conciliatory (Black 5). The brief description of law and its interrelation with social control and deviant behavior can be encapsulated in the following scheme. This concept of law put into the context of social life gives a framework of the behavior of law.