Regarding judicial review, Chief Justice John Marshall wrote in his opinion that, “It is empha... ... middle of paper ... ...es his point by saying that it does not specify the extent of those powers. Personally, I believe that judicial review is a necessity in order to preserve the constitution. Thus, I disagree with Gibson’s opinion. Although I understand the content of his words and why he believes them, but I think a very specific power such as judicial review is necessary to check the other branches. 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.
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. Having a judge consciously decide how to interpret statute that cannot be overruled, is one of the concerns that a supreme constitution faces. Currently New Zealand’s flexible, unwritten constitution is working satisfactory although in a rapid changing society a codified supreme constitution may become a potential reality.
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.
It precludes that legislators are also incapable to set for the people they serve, laws that will properly govern the people. The first argument against judicial review, in summation, is the people or the population through their democratically elected leaders have the sole right to set forth their own laws. Judicial review yanks the democracy out of the hands of the people by not including the voice of the people in the policy change. The second argument against judicial review is that it allows for an individual or a group with its own agenda to cau... ... middle of paper ... .... In other words, the judge has the ability to accept or deny any judicial review question they want.
The idea of a governing body drawing its power directly from its constituents has been undermined by the corrupt nature of modern politics where politicians act out of self-interest. While the Constitution and later amendments had every intention of securing basic liberties, certain limitations later undermined the original intentions of the founding fathers to give power back to the people by placing the larger majority of power in the hands of the state. Federal limitations to certain amendments, known as federal mandates, have taken power away from the masses. To secure democracy and avoid further abuses of power by the judicial courts, an amendment should be made to the Constitution prohibiting the federal government from putting down mandates that directly interfere with the power given to the states by law. Federal politicians use desultory commands as leverage to ensure that the states comply with their wishes.
Starting with calling themselves, “Federalists” instead of “nationalists” solidified the opposition as anti and thus negative. In reality, the sel... ... middle of paper ... ...Bill of Rights as a compromise, ratification became possible. Proposing the need for a Bill of Rights also became a point of contention for some Anti-Federalists. They pointed out that if there was a need for a Bill of Rights, the Constitution itself was not perfect. Although a solid argument, it was not enough to prevent ratification.
Ultimately, The Bill of Rights was adopted to appease the Anti-Federalists, whose support was necessary to ratify the constitution, and who believed that without the liberties granted therein, the new constitution—that they thought was vague and granted too much power to the central government—would give way to an elite tyrannical government. The purpose of The Bill of Rights is to protect U.S. citizens from abuse of power that may be committed by the different areas of their government. It does this by expressing clear restrictions on the three braches of government laid out previously in the Constitution. As stated by Hugo Black, Associate Justice to the Supreme Court: “The bill of rights protects people by clearly stating what government can’t do by describing ‘the procedures that governmen... ... middle of paper ... ...ivists web site that allows you to share your environmental opinions with friends all over the country. It is hard to imagine a society such as ours without the rights that we have in the First Amendment.
However, various groups have challenged the success of democracy to fully represent citizens’ rights because of its divisive nature. The goal is to apply fair democratic practices in the United States and develop more universal equality around the world. The various critiques of democratic practices have relevance to modern political systems and thus, I argue that democratic objectives become deficient due to the limits of power by political leaders and unequal repre... ... middle of paper ... ...n political thinkers like Foucault put forth the idea that power among the hands of the state is both suspicious and dangerous. In discursive political theory, there must be an open communication of ideas and reason between citizens, but many critics, like Jurgen Habermas and Sheldon Wolin, argue that open dialogue in modern democratic practices is vulnerable to fears and concerns of citizens. Inclusionary democracy prevents the tyranny of a few to withhold political rights to citizens and calls for acceptance of rights for various social and racial groups in order for equal representation in the political process.
If the government had not interfered, the people would have accomplished even more. Thoreau goes on to claim that we should not decide what is 'right' by majority, but rather by individual conscience. If an individual believes a law to be unjust, he should not obey the law. Thoreau had some good, high-sounding ideas, but it appears he did not understand the reasoning behind some of what the government does. His views do not match up to the views found in the Constitution and the Bible.
Factions and the Constitution The framers designed the Constitution in such a way as to lessen the influence of political parties in American government, however at the same time, the very essence to the formation of political parties, liberty, was left in the Constitution. Both Madison and Schattschneider cite that while the Constitution does not support factions, it cannot abolish them because of the fact that the Constitution was designed to protect the liberties of the citizens. They both go on to say that liberty is the spark, which causes political parties to develop. In Madison's Federalist 10, it is evident that he was not in favor of the formation of factions. He states, "…The public good is often disregarded in the conflicts of rival parties…" Madison made the point that the dangers of factions can only be limited by controlling its effects.