The judiciary cannot abuse the power but the legislative and executive branches can create laws that are abusive to the powers given to them by the constitution. This is why judicial review is a necessity. Works Cited Epstein, Lee, and Walker, Thomas. Constitutional Law for a Changing America: Institutional Powers and Constraints. Washington, D.C.: CQ, 2007 Shafritz, Jay M., and Lee S. Weinberg.
As Lord Templeman stated in M V Home ‘Parliament makes the law, the executive carry the law into effect and the judiciary enforce the law’ . The relationship described between the branches is one of ‘checks and balances’. ... ... middle of paper ... ...ws and the judiciary branch is the courts interpreting the laws. The US also follows a pure separation of powers whereby each branch is constitutionally isolated from one another. This separation can be shown through the powers each branch has.
One of the most important concerns of the Anti-Federalists was that the new form of government would strip the states of their own power. The Anti-Federalists feared that by combining the previously independent states under one government that, "...the states, once sovereign, would retain but a shadow of their former power..."(Main 120). The Anti-Federalist claimed that if the sovereignty of the states was to be maintained then the states must be granted the vital powers of government and the power of Congress limited. However, they claimed that this was not so under the Constitution. The Constitution gave Congress unlimited power and did not explicitly detail any control that the states would be able to exercise over the Federal government.
In parallel to the USA, New Zealand’s current constitution is neither supreme nor entrenched, a trait inherited from Great Britain. A benefit of this i... ... middle of paper ... ...of the legislature whose role is to make law. A new supreme constitution would remove the executive power to overrule judicial authority in circumstances where decisions were made involving the constitution. In deciding to make a supreme constitution for New Zealand a consideration of whether to grant the judiciary with this extended power needs to be deliberated. Many would argue that allowing an un-elected judge supreme power over the elected Members of Parliament would be undemocratic and henceforth violate the staple principle of our society.
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. It is important to understand the classic debate of Yates v. Hamilton in order to comprehend the context of judicial review in American democracy. Robert Yates was an anti-federalist and judge of the New York Supreme Court who advocated that judicial review was not consistent with the spirit of democratic government.
Through a review of these three cases, it can be concluded that there are no real limitations on Congress when regulating commerce. The Constitution of the United States explicates the enumerated powers that the people have granted to their public administration. A narrow interpretation of the Constitution would mean denying the government the powers granted to them to keep order, equality, and fairness. An expanded interpretation would “extend words beyond their natural and obvious import, and we might question the application of the term…” (244). It is the government’s responsibility to exercise powers that cannot be exercised by its governed people.
If the government “derviv[ed] their just powers” from the people, not from divine authority, as it was with Britain and other monarchies, then it followed that the government would only be able to exercise powers in the areas allocated by the people and, therefore, would be limited to their purview alone (Cummings 2015, 64). This was an important point because it ensured the America would never be under the illegitimate rule of a tyrant again. This idea directly connected to the final important principle of government the Declaration laid out; the right to revolution. If a government had become “destructive of these ends”, such as failing to protect the people’s rights or abusing the
Since Congress possess these powers, the creation of the Bank was related, necessary, and proper. Next, the Supremacy Clause of Article VI of the Constitution states that the laws of the United States “trump” any state laws that conflict with them. Chief Justice Marshall stated that Maryland was unconstitutionally undermining the superior laws of the United States and the supreme law of the land. Lastly, the Supreme Court ruled that the political authority of the Union belongs to only the people of the United States and not the individual states. The people created, and are governed by, the Constitution and they give the U.S. Government its power.
The new chief justice of the Supreme Court, John Marshall knew that the court issued a writ of mandamus, Jefferson would ignore and effectively weakening the authority of the courts. But if the Court denied the writ, the court would appear to others that it acted out of fear. Either case would be a denial of the basic principle of the supremacy of the law (Marbury v. Madison,1803). Instead Marshall found a different path. The court would chastise the Jefferson administration for their actions while enhancing the court's power.
Thereupon Marbury, one of the midnight appointees, went to the Supreme Court requesting a judicial order, writ of mandamus, to compel Madison to deliver his commission. Article III. Section 2, of the Constitution gives the Supreme Court original jurisdiction only in cases affecting the Ambassadors, other public Ministers and Consuls, and those in which a state shall be a Party. Marbury’s case did not fall in that category. Marbury went to the Supreme Court because in his view an act of Congress, Section 13 of the Judiciary Act of 1789, authorized him to do so.