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notes November 21

notes November 21 - Agenda Recap A Work Definition of...

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November 22, 2005 Agenda Recap: A Work Definition of Democracy Judicial Review o Definition o Origins Conceptualizing the Role of Judicial Review in Democracy o Bork o Peretti o Sunstein Review Questions Questions What is the power of judicial review? What is its origin? If judicial review is not clearly provided in the Constitution, can this power be defended as “democratic”? Judicial Review What is it? o JR is the power of the court to strike down acts of elected branches as unconstitutional. o Can throw it away in a trash can. o US Court uses this power aggressively when compared to other democracies. o Can we find a clear basis for the power of judicial review? Is it in Article III? o Article III refers to the power to adjudicate cases arising under federal law. Was it implicit? o Hamilton (Federalist 78): Yes o John Dickinson: No o Council of Revision: Maybe We were going to constitute this panel members of the executive and judiciary; council was an oversight role to Congress; and had power to veto over what Congress did; this served as another check and members of judiciary were part of this panel to “revise” the law; Where does it come from? o Marbury vs. Madison o John Marshall used the case as a vehicle to establish that SC is final arbitrator o Power grab away from other branches of government. o This underscores the question Bork and the Legislative Supremacy Model Key Value? o Public Accountability
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Is Judicial Review Democratic? o In Narrow Circumstances Can be abused. Proper use of Judicial Review? What are these narrow circumstances? o Strike down law that violate rights clearly delineated in the Constitution (Judicial Restraint) Law that abridged speech passed by Congress, courts should use power to strike down because at core of the First Amendment. o When in doubt, let the elected braches fight it out.
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