Chapter 14

Chapter 14 - Chapter 14 The Judiciary I Introduction A Only...

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Chapter 14: The Judiciary I. Introduction A. Only in the United States do judges play so large a role in policy-making. 1. Judicial review: right to rule on laws and executive acts on basis of constitutionality; chief judicial weapon in system of checks and balances 2. In Great Britain, Parliament is supreme 3. In other countries, judicial review means little Exceptions: Australia, Canada, West Germany, India, and a few others B. Debate is over how the Constitution should be interpreted 1. Strict constructionist (interpretivist) approach: judges are bound by the wording of the Constitution 2. Activist (legislative) approach: judges should look to the underlying principles of the Constitution 3. Not a matter of liberal versus conservative a. A judge can be both conservative and activist, or vice versa b. Today most activists tend to be liberal, most strict constructionists conservative II. The development of the federal courts A. Founders' view 1. Most Founders probably expected judicial review but not its large role in policy making 2. Traditional view: judges find and apply existing law 3. Activist judges would later respond that judges make law 4. Traditional view made it easy for Founders to justify judicial review 5. Hamilton: courts least dangerous branch 6. But federal judiciary evolved toward judicial activism B. National supremacy and slavery: 1789-1861 1. McCulloch v.Maryland: federal law declared supreme over state law 2. Interstate commerce clause is placed under the authority of federal law; conflicting state law void 3. Dred Scott v.Sandford: Negroes were not and could not become free citizens of the United States; a direct cause of the Civil War C. Government and the economy: Civil War to 1936 1. Dominant issue of the period: whether the economy could be regulated by state and federal governments 2. Private property held to be protected by the Fourteenth Amendment 3. States seek to protect local businesses and employees from the predatory activities of national monopolies; judicial activism 4. The Supreme Court determines what is "reasonable" regulation
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Chapter 14 - Chapter 14 The Judiciary I Introduction A Only...

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