Dialnet-TheSeparationOfPowersInUnitedStatesOfAmerica-3046701.pdf

That a senate with a large democratic party majority

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That a Senate with a large Democratic party majority rejected this plan, offered by a popular Democratic president, gives some measure of the prestige enjoyed by the Supreme Court among the people. 92. The Federalist , 78/405. 93. Perhaps the most notorious example of substantive due process is Dred Scott v. Sandford , 19 How. 393 (1857). Here the Court held slaves to be property and then invalidated congressional legislation (the Missouri Compromise) on grounds that it violated the “due process” clause of the Fifth Amendment in abridging property rights, Lochner v. New York , 198 U.S. 45 (1905), in which the Court employed “liberty” of the “due process” clause of the Fourteenth Amendment to invalidated state regulation of working hours for bakers as unreasonable, is widely used to illustrate the overreach of judicial power. 94. For a thoughtful and pioneering work dealing with the ramifications of this development, see Charles S. Hyneman, The Supreme Court on Trial (New York: Atherton Press, 1963). Works dealing with one or more aspect of this development are far too numerous to cite. A good introduction with bibliography is Modern Constitutional Theory: A Reader , 5 th ed., eds. John H. Garvey and T. Alexander Aleinikoff (St. Paul, Minnesota: West Group, 2004). 290
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that provides: “nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” Congress it appears was to play a major role in defining and enforcing the provisions of the Amendment since section 5 reads: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Over the decades, however, the Supreme Court has become the chief enforcer of the “due process” and “equal protection” clauses. Using primarily the “liberty” of the due process it has “nationalized” the major provisions of the Bill of Rights by mandating their uniform application in the states. The Court, moreover, has employed Fourteenth Amendment to make decision that many contend are among most critical in determining the character of American society. 95 Its decisions relating to abortion, school prayer, government aid to religious schools, reapportionment, pornography and obscenity, the death penalty, libel and slander, affirmative action, school busing, and, among others, the rights of the criminally accused have engendered enormous controversy. The Court’s critics contend that in many instances it has intruded on the legislative domain and that, what is worse, its decisions on these and like matters, based as they are on constitutional grounds, have effectively removed from legislative purview concerns that are best handled through the political processes at either state or national levels. The remedy suggested by the critics is the judicial self-restraint; a restraint in keeping with the morality set forth by Hamilton.
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  • Fall '16
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