The role of constitutional doctrine in Supreme Court history In Saying What the Law Is Charles Fried asserts the importance of “constitutional doctrine” in the judicial process of the U.S. Supreme Court. Fried puts forth that doctrine via the interpretation of past Supreme Court cases, represents the lion’s share of constitutional law, and provides a buttress for the configurations of our government while concomitantly defining and protecting our individual rights. Fried claims early in the book that it is not a work of history or philosophy but an “understanding” of the topic of constitutional law. He provides an analysis on the practices or ways of thought that influence judicial opinions. Fried is a strong believer in constitutional doctrine and insists that coherence, precedence, and stare decisis are more influential and important to decisions made by Supreme Court justices than individual politics. Saying What the Law Is furnishes an introductory, though no less penetrating insight into SCOTUS and constitutional law from the bird's eye view of Fried who has special knowledge, access and experience. Fried’s time as Solicitor General, constitutional law scholar, and Massachusetts Supreme Court justice is apparent in his thorough understanding of the intricacies of constitutional law. The intricately wrought nature of constitutional law is an important aspect of Saying What the Law Is. The book comprehensively takes on the difficult undertaking of looking critically and constructively at constitutional doctrine, coherence, and the precedence that determines the vital properties of our constitutional structures. In this book, Fried thinks carefully about Supreme Court decisions, examining the central issues of const... ... middle of paper ... ...ility and progress. I found Saying What the Law Is to be very elucidating, but not without putting in my fair share of work. This book is not an easy read for a lazy day at the beach, but there are a lot of rewards to reap within its pages. Fried’s thorough examination can transform the lay spectator into something of a constitutional scholar, or even an informed advocate. Charles Fried introduces the reader to doctrine theory, then does a complete job of analyzing his ideas, constitutional doctrine from the beginning, Marbury v. Madison, through to current issues, Grutter v. Bollinger. After reviewing the history of SCOTUS, and the decision making process, I have a much clearer understand of the Living Constitution conception, many instances of doctrine in action, and some of my reservations about politics influencing with judicial the process alleviated.
The court case of Marbury v. Madison (1803) is credited and widely believed to be the creator of the “unprecedented” concept of Judicial Review. John Marshall, the Supreme Court Justice at the time, is lionized as a pioneer of Constitutional justice, but, in the past, was never really recognized as so. What needs to be clarified is that nothing in history is truly unprecedented, and Marbury v. Madison’s modern glorification is merely a product of years of disagreements on the validity of judicial review, fueled by court cases like Eakin v. Raub; John Marshall was also never really recognized in the past as the creator of judicial review, as shown in the case of Dred Scott v. Sanford.
When the rights of the American citizen are on the line than the judiciary should utilize the powers invested in them to protect and enforce what is constitutional. However, in times of controversy, where personal preference or aspects of religious or personal nature are at hand, the judiciary should exercise their power with finesse, thereby acting out judicial restraint. An example of such is in the case of Engel v. Vitale where Mr. Justice Black delivered the opinion of the court directing the School District’s principal to read a prayer at the commencement of each school day. In cases that do not regard whether an action is constitutional or not, the judiciary should suppress their power of judicial review.
The antebellum period was filled with important Supreme Court rulings that had an influential impact on the U.S. The case of Dred Scott vs. Sandford is a perfect example of a ruling that highly affected the U.S. In Dred Scott vs. Sandford the Supreme Court ruled that African Americans, whether a slave or free, were not American citizens and were unable to sue in federal court. The Court also ruled that Congress did not have the power to ban slavery and in the U.S territories. In addition to, the Court also ruled that the Fifth Amendment protected the rights of slave owners because slaves were not classified as humans but as pieces of property. The devastating outcome of this court case had multiple effects on the U.S.; it gave more power to the National Government, it took away some of the sovereignty of states, overturned the Missouri Compromise, instigated the Civil War, and opened eyes of the Northerners.
In this excerpt from Democracy in America Alexis Tocqueville expresses his sentiments about the United States democratic government. Tocqueville believes the government's nature exists in the absolute supremacy of the majority, meaning that those citizens of the United States who are of legal age control legislation passed by the government. However, the power of the majority can exceed its limits. Tocqueville believed that the United States was a land of equality, liberty, and political wisdom. He considered it be a land where the government only served as the voice of the its citizens. He compares the government of the US to that of European systems. To him, European governments were still constricted by aristocratic privilege, the people had no hand in the formation of their government, let alone, there every day lives. He held up the American system as a successful model of what aristocratic European systems would inevitably become, systems of democracy and social equality. Although he held the American democratic system in high regards, he did have his concerns about the systems shortcomings. Tocqueville feared that the virtues he honored, such as creativity, freedom, civic participation, and taste, would be endangered by "the tyranny of the majority." In the United States the majority rules, but whose their to rule the majority. Tocqueville believed that the majority, with its unlimited power, would unavoidably turn into a tyranny. He felt that the moral beliefs of the majority would interfere with the quality of the elected legislators. The idea was that in a great number of men there was more intelligence, than in one individual, thus lacking quality in legislation. Another disadvantage of the majority was that the interests of the majority always were preferred to that of the minority. Therefore, giving the minority no chance to voice concerns.
The Constitution was the first stepping stone in the national sovereignty of the United States. It is the supreme law that has been valued and upheld since its ratification in 1787. It holds the rights and freedoms of all Americans and gives structure to the government. To uphold this structure, the judiciary branch was established, alongside the legislative and executive, by the Constitution. However, the judicial branch did not always have the power and influence it does today. Because of the 4th Chief Justice, John Marshall, the Supreme Court eventually gained the power and ability to become coequal to the legislative and executive branches. John Marshall’s establishment of Judicial Review in the Supreme Court and his strong federalists
Jost, Kenneth. "The Federal Judiciary." CQ Researcher 8.10 (1998). CQ Researcher. SAGE Publications. Web. 01 Mar. 2011. .
Rehnquist, William H., Brennan, William J. "A Casebook on the Law and Society: What Rights
Such precedent setting decisions are usually derived from the social, economic, political, and legal philosophy of the majority of the Justices who make up the Court, and also represent a segment of the American population at a given time in history. Seldom has a Supreme Court decision sliced so deeply into the basic fabric that composes the tapestry and direction of American law or instigated such profound changes in cherished rights, values, and personal prerogatives of individuals: the right to privacy, the structure of the family, the status of medical technology and its impact upon law and life, and the authority of state governments to protect the lives of their citizens.(3-4)
The purpose of this paper is to discuss how Chief Justice John Marshall affected the American Judicial System. The reader will therefore first find a brief biography of John Marshall. Then the paper will explain in detail the origins of the Judicial Power to subsequently...
Remy, Richard C., Gary E. Clayton, and John J. Patrick. "Supreme Court Cases." Civics Today. Columbus, Ohio: Glencoe, 2008. 796. Print.
Hall, Kermit L, eds. The Oxford guide to United States Supreme Court decisions New York: Oxford University Press, 1999.
Abadinsky, Howard. Law and Justice: An Introduction to the American Legal System. 6th ed. Upper Saddle River: Prentice Hall, 2008. Print.
When I began reading the USCGA I expected a new approach to learning about the laws that formed our system of government. I didn’t anticipate thoroughly enjoying the clever side notes and illustrations, while adding to my knowledge that was formed during U.S History and Government classes in high school. Hennessy and McConnell succeeded in furnishing a new medium for constitutional schooling. That is especially useful as an introduction to the United States founding
Columbia Law Review, 104, 1-20. doi:10.2307/4099343. Reynolds, S. (2009). The 'Standard'. An interview with Justice Ruth Bader Ginsburg.