The second development one designed to place the

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The second development, one designed to place the Court’s decisions outside the realm of the normal political processes, is the Court’s assertion that its interpretation of the Constitution is final, authoritative, and binding on the other branches of government. 96 This pronouncement scarcely caused a stir largely because it only reaffirmed what, as noted above, was already acquiesced to by the other branches over the course of the Twentieth Century. Yet, this position is at odds with that held by “strong” presidents of the past, including Jefferson, Jackson, and Lincoln. 97 What is more, the Court’s position encounters a serious theoretical difficulty arising from the fundamental law theory, the very theory originally used to justify judicial review: the Court no less that the Congress is a “creature of the Constitution” and bound by its terms. The logic of the fundamental law theory, in other words, allows for the possibility that the Supreme Court can itself act unconstitutionally. Critics of activist Courts are essentially asserting this in arguing that the Court, contrary to the fundamental law (the rules to which the people 95. For a typical, hard-hitting critique that makes this and the following points see, Lino Graglia, “How the Constitution Disappeared” in Interpreting the Constitution , Jack N. Rakove, ed. (Boston: Northeastern University Press, 1990). 96. Cooper v. Aaron , 358 U.S. 1 (1958). 97. Both Jackson and Jefferson would maintain that a president is not constitutionally obliged to enforce decisions of the Supreme Court. Lincoln’s position was more nuanced. He did not accept the proposition that the Constitution necessarily means what the Court says and that it is legitimate, when the Courts errs, to use a variety of political means to force reconsideration of and change in the Court’s view. 291
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agreed to govern themselves), has itself breached the constitutional separation of powers by assuming legislative powers. Obviously, the controversies over the role of the Court are not going to be resolved by the Court’s affirmation that it is the sole judge of the extent of its powers. Nor does the doctrine of separation of powers as it has been developed through practice in the United States provide any clear answer to the question of how the courts are to be kept within bounds. Hamilton’s belief that removal of judges through the impeachment process would serve to keep judges in line has been superseded by a new constitutional morality that has prevailed since the time of the Samuel Chase impeachment trial, namely, judges should not be removed for their decisions or unpopular political views 98 Congress has other weapons at its disposal, such as curtailing the Supreme Court’s appellate jurisdiction which, due to political and pragmatic considerations, have been resorted to infrequently.
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  • Fall '16
  • carol
  • Separation of Powers

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