If the Constitution is the source of governmental power

If the Constitution is the source of governmental power -...

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If the Constitution is the source of governmental power, and the judiciary interprets the Constitution, then the judiciary is the most powerful branch of government.” Discuss When the Founding Fathers were forming the Constitution of the United States at the end of the 18 th Century, they were trying to create a system able to reflect that men are not ‘angels’. As such, there will always be power struggles and differences of opinion, as well as a tendency for violence, hatred, disunion and corruption. The Constitution took this into account and intended to form a ‘more perfect Union’ and promote the ‘general Welfare’ given the failings of mankind. It was concluded that the best way to realise these aims was to create a system of separated powers, advocating the political maxim that ‘the legislative, executive and judicial departments ought to be distinct’ [James Madison]; the judiciary was to make up the ‘weakest of the three departments of power’ [Alexander Hamilton]. However, in the more than two hundred years that have passed since the establishment of the American Constitution, the power and influence of the judiciary, and primarily that of the Supreme Court, has grown to the extent that it has been claimed that the government of the United States is now a ‘government by judiciary’. Certainly, the recent example of Bush v. Gore in which the Supreme Court stopped the counting of ballots in the 2000 presidential election appears to support this thesis, as well as demonstrating a possibly alarming level of partisanship by the Court. But is this the case? Is it correct that the ‘judiciary is the most powerful branch of government’ and if it is, what can be said about the lasting influence of the Founding Fathers and their democratic ideal upon the American State? Hamilton wrote in The Federalist Papers that the judiciary is intended to ‘ascertain’ the ‘meaning’ of the Constitution and the ‘meaning of any particular act proceeding from the legislative power’. It is this that has formed the basis of the justification for the process of judicial review. The power of judicial review was not used until the landmark case of Marbury v. Madison in 1803 in which Chief Justice John Marshall struck down the 1789 Judiciary Act and so defied the wishes of President Jefferson. This set a precedent and has led to Marshall, perhaps rightly so, being called ‘unquestionably the greatest’ Chief Justice in American history. Marshall’s decision made ‘inevitable’ the institution of national judicial authority over both state and federal legislation, according to political historians such as Archibald Cox. But does this level of authority amount to judicial supremacy? It seems that this is not what Hamilton intended when he wrote that the judiciary was the ‘least dangerous’ branch of government, claiming that concept of judicial review did not ‘imply a superiority of the judiciary to the legislative power’. Certainly, accusations of judicial supremacy has important implications for democracy.
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This note was uploaded on 04/29/2008 for the course PPE PPE taught by Professor None during the Summer '08 term at Oxford University.

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If the Constitution is the source of governmental power -...

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