The Genesis of a Higher Law

FLORES, Lloyd Mark Vincent

The American Practice of Judicial Review

Referred to as the American Doctrine Americas greatest single contribution to the art of government Enabled America to achieve an absolute reign of law

The Different Views on Judicial Review

veto power of Federal Judges over legislative acts The application of the higher law of the constitution over the inferior laws of the legislative or state.

Veto Power and Judicial Review

Social/Economic considerations vs. Canons of Law Advance Censorship vs. Subsequent Censorship Void statutes vs. Unconstitutional statutes

Origins of the Features of Judicial Review

Common Law Emergence of the written constitution

The Ingenuity of the Written Constitution

Reduces and organic political structure to a fixed form Limits the possibilities of legislation Distributes governmental authority Limits governmental authority Hierarchy of statutes

Paradoxes of the Inception of Judicial Review

Critics vs. Supporters of Judicial Review
No express empowerment vs. implicit empowerment Constitution vs. Articles of Confederation Omnipotent Judiciary vs. Final Arbiter

History and Growth of Judicial Review

The influence of the cult of Common Law Lord Coke as the godfather of common law Magna Carta Judicial Review in the habits of the colonial government Judicial Review in the Federal Government

The Idea of a Representative Government

Paved the way for the ultimate triumph of Judicial Supremacy Democratic vs Representative form of government Judicial Supremacy through John Marshall

John Marshall and the Triumph of Judicial Supremacy

FONACIER, Anton

Judicial Review

Power of the Judiciary to annul acts of the state if they are incompatible with a higher power Typically associated with John Marshall

John Marshall

Virginia Lawyer and

Federalist Party member Involved in the XYZ affair. Somewhat of a national hero Atty. General and Sec. of State in John Adam's cabinet Became Chief Justice after 1800 revolution.

Marbury v. Madison

Landmark case - basis

for the exercise of Judicial Review Gave the impression that court was limiting it's own power.

John Marshall and the Constitution

Believed in Judicial

Nationalism Employed TWO clauses in the Constitution

Contract Clause o Commerce Clause
o

Judicial Review - Growing and Changing

Supremacy of Judiciary over Congress

established, but incomplete Two clauses established constitutional limitations against states, but not against state and federal governments

John Marshall's successor

Chief Justice position

succeeded by Roger Brooke Taney
Secretary in Treasury in Jackson's Cabinet o 5th Chief Justice o Most remembered for Dred Scott case.
o

Dred Scott Case

Supreme Court had 2 rulings:

o
o

African American slaves were not citizens of the US Federal Gov't had no power to regulate the slaves in ANY territory in the US.

First time in Marbury v. Madison that SC nullified a general act of congress. One of the events that leaded up to the CIVIL WAR

Mission of Taney

Focused on restoring rights for state Supposed to have forged the concept of
"Police Power" Progressivism and democracy Dominant motivation - "necessity for upholding the states in dealing with the problem of slavery"

Civil War

Judicial review - largely post civil war creation Between Southern Confederates and Northern
Union Union won

14th Amendment

no state shall "deprive any person of life liberty

or property without due process of law, nor deny to any person within its jurisdiction the equality protection of laws Due process
o

roots in Magna charta

Also included corporations as persons

Guaranteed normal judicial procedure in determination of rights

Tying it all together

Requirement for due process acted as the

substantive limitation upon states and federal power to legislate that Judicial Review required to be complete "Any state or Federal law which a majority of Judges of the Supreme Court of the United States thought 'unreasonable' became unconstitutional and subject to nullification."

Government of Laws
GARCIA, Zandro Jose

Behind the Constitution

The Old Men of the Supreme Court the guardians of constitutionality

The Advantage of the Supreme Court

Supreme Court as the court of ultimate conjecture

We are under a Constitution but the Constitution is what the judges say it is. - Chief Justice Charles Evans Hughes

Government of Laws as Government of Lawyers

The Court has declared that the unconstitutionality of a statute must be declared beyond reasonable doubt BUT in reality, declarations of unconstitutionality of statutes are established by mere procedure (5-4 vote)

Constitutionality

MATTER OF FORM

MATTER OF FASHION

Due Process
Seems to be elusive in character
Twilight Zone No regulation at all is possible It seems that the old men of the Supreme Court determine what is and what is not regulated

Judicial Review
Although of special significance in the general development of law, such is the interest in the constitutional functions of the Supreme Court Judicial duel undermined
Since the American judiciary determines for itself the nature and extent of its powers, it has been abled to resist all legislative attempts

The Nine Old Men

GUERRERO, Kyle

The Nine Old Men

The Nine Old Men

Nine Old Men are the Justices of the Supreme Court of the United States
1 Chief Justice and 8 Associate Justices Labeled as Nine Old Men because:
Lifetime term The liberalist advocacy

The Supreme Court and American Politics

Love-Hate Relationship
SCs conservative judicial review Liberalist views

The Supreme Court

SC has the power of Judicial Review Conservative and traditional
Roosevelt administration: experiments to stop the Great Depression (30s) Most of which has been struck down
The New Deal

The New Deal

A series of economic programs to enact the 3 Rs This has been put into Constitutional Limbo by the SC since there are issues with
National Recovery Administration Agricultural Adjustment Act

American Politics

American Politics
Advocacy of Liberalism Attacks are not against the Supreme Courts exercise, but on the manner of exercising Judicial Review
Horse and Buggy Interview Push for early retirement Personal Attacks

Apparent Change of Heart

The Supreme Court seems to have taken a liberalist view:
*National Recovery Administration *Agricultural Adjustment Act Minimum Wage and the National Labor Relations Act

Apparent Change of Heart

There are still SC decisions that are quite for Conservatism:
The Sherman Antitrust Act was upheld The case of Jehovah's Witness and the United States Flag

But Despite All

Very few seemed to have the desire to abolish Judicial Review entirely The American People can live neither with nor without the so-called Nine Old Men
Although the Constitution may have tied the hands of the Justices, it still gives them the space to have their own interpretations

Summary
Relations between American Politics and the SC can be said as the:
the absolute reign of law being synonymous with

absolute reign of lawlessness

SC decisions focus on the momentous political issues, and leave the relatively trivial questions behind