Want to Help Me With My Homework?

[Annie]

I'm taking a 3 day seminar regarding teaching civics. http://www.ilciviced.org/SummerInst_09.pdf

Actually it's just the break I needed from trying to clean out my home, but I really 'hate' judicial review. Our group took pity on the other, as they had too many 'elementary teachers', i.e. grades 3-5, so we let them take the question for Federalists v. Anti-Federalists.

Anyhow if anyone, lawyer or just constitutionally driven has some ideas, post them. Here's the framework:

What is the power of judicial review and how was it established in the United States?
• Is the power of the Supreme Court to overrule the will of a congressional majority consistent with the principle of representative government? Why or why not?
• If the Supreme Court did not have this power, in what other way could the rights of minorities be protected from the majority? Take and defend a position on which way you think the right of minorities should be protected.

Definition of judicial review:



Establishment of Judicial review:




Consistent with the principle of representative government?



Why or why not?



What other way could the right of minorities be protected from the majority?


Groups position on how rights of the minority should be protected:


Defense:

 

[Annie]

Damn, looks like I have to do myself!

 

[strollingbones]

o damn....easy questions for social science majors....what was your major?

 

[ZhaoYun]

Seriously, this is High School civics stuff. Marbury vs. Madison? Ring a bell? "Hate" judicial review? It's one of the most important checks and balances. The legislative branch writes the laws, the judicial interprets and maintains Constitutional integrity, and the Executive enforces. If you hate judicial review I'd like to know how you feel about jury nullification.

 

[Annie]

Okay. to those who commented, though added zip towards helping to educate the future deciders of our country's future. Here's my part:

What is the power of judicial review and how was it established in the United States?

• Is the power of the Supreme Court to overrule the will of a congressional majority consistent with the principle of representative government? Why or why not?

• If the Supreme Court did not have this power, in what other way could the rights of minorities be protected from the majority? Take and defend a position on which way you think the right of minorities should be protected.

Definition of judicial review:

1. According to Level 3 “We The People”, P 109: “The power to declare what the Constitution means and whether the actions of government official violate the Constitution.”

2. “Power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution. Actions judged inconsistent are declared unconstitutional and, therefore, null and void. The institution of judicial review in this sense depends upon the existence of a written constitution. power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution. Actions judged inconsistent are declared unconstitutional and, therefore, null and void. The institution of judicial review in this sense depends upon the existence of a written constitution.”

judicial review (law) -- Britannica Online Encyclopedia

Establishment of Judicial review: While the common American belief is that Marbury v Madison was the landmark case, the truth is that judicial review has a long history. The level 3, “We the People” text alludes to such, p. 109. “The Constitution does not mention the power of judicial review. However, both the Federalists and Anti-Federalists assume that the Supreme Court would exercise judicial review. The practice traces its roots to the seventeenth century English system of law. It was well known and used by most state courts before adoption of the Constitution and even by the Supreme Court before being officially acknowledged in Marbury. Alexander Hamilton defended the power in Federalist 78”:

“A constitution is in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning.”

In Marbury, Marshall asserted that “it is emphatically the province and duty of the judicial department to say what the law is.” According to Marshall, judicial review rests on the following premises:

• The people exercised their sovereign power when they adopted the Constitution. The Constitution is a superior, paramount law that cannot be changed by ordinary means.

• Particular acts of Congress, the executive, and the states reflect temporary, fleeting views of what the law is.

• Acts of Congress, the executive, and the states that conflict with the fundamental law of the Constitution are not entitled to enforcement and must be disregarded.

• Judges are in the best position to declare what the Constitution means. By striking down laws and acts that conflict with the Constitution, they preserve the nation’s fundamental law and the true will of the people.

And the “Showdown” between the Federalists and Anti-Federalists regarding judicial review, teaching, and comparing:

The Power of the Judicial Branch: The Federalist Number 78 and the Anti-Federalist 78, Marbury v. Madison, Landmark Supreme Court Cases

Marbury v. Madison (1803)

The Power of the Judicial Branch:
The Federalist Number 78 and the Anti-Federalist 78

Introduction
When the Constitution was first written, many people supported it. However, there were some people who were opposed to it. The framers feared that not enough states would ratify it and decided to write a series of persuasive papers to influence people's opinion.

They attempted to convince people that the structures and concepts in the Constitution were right for a country seeking to balance power between a national government, state governments, and the people. The series of articles written by Alexander Hamilton, James Madison, and John Jay, appeared in local newspapers under the pseudonym Publius. Later, these articles were compiled and published as a book called The Federalist Papers. Others who opposed the Constitution compiled their response in a document called The Anti-Federalist Papers.

The Federalist Number 78 and the corresponding Anti-Federalist document dealt specifically with the judicial branch of government. Read the excerpts from each of these texts then answer the questions that follow.

The Federalist No. 78
WE PROCEED now to an examination of the judiciary department of the proposed government.

According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR. . . . In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary . . . may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two . . . that . . . the general liberty of the people can never be endangered from that quarter; I mean, so long as the judiciary remains truly distinct from both the legislative and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers." And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments . . . and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

If it be said that the legislative body are themselves the constitutional judges of their own powers . . . it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both . . .
If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established GOOD BEHAVIOR as the tenure of their judicial offices . . . The experience of Great Britain affords an illustrious comment on the excellence of the institution.

Questions to Consider:
Explain the following passage. 

"the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution . . . [it] may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." 

What does the author mean by this? 


Examine the following passage.

"For there is no liberty, if the power of judging be not separated from the executive and legislative powers." 

What does the author mean by this? Which principle of government does this support?



According to the author, why are the courts vital to a limited constitution?


Why does the author believe that judges have permanent tenure?



What is the author's attitude toward the proposed Supreme Court of the United States?

Antifederalist No. 78 - 79
. . . The supreme court under this constitution would be exalted above all other power in the government, and subject to no control. . . .
The judges in England, it is true, hold their offices during their good behavior, but then their determinations are subject to correction by the house of lords; and their power is by no means so extensive as that of the proposed supreme court of the union. . . . But the judges under this constitution will control the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress. They are to give the constitution an explanation, and there is no power above them to set aside their judgment . . . there is no power above them that can control their decisions, or correct their errors.

. . . this court will be authorised to decide upon the meaning of the constitution; and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it. In the exercise of this power they will not be subordinate to, but above the legislature . . . The supreme court then has a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature. In England the judges are . . . subject to have their decisions set aside by the house of lords, for error . . . But no such power is in the legislature. The judges are supreme and no law, explanatory of the constitution, will be binding on them.

When great and extraordinary powers are vested in any man, or body of men, which in their exercise, may operate to the oppression of the people, it is of high importance that powerful checks should be formed to prevent the abuse of it . . . I suppose the supreme judicial ought to be liable to be called to account, for any misconduct, by some body of men, who depend upon the people for their places; and so also should all other great officers in the State, who are not made amenable to some superior officers. . . .


Questions to Consider:
According to the document, how does the Supreme Court of the United States differ from the highest court in Great Britain?


What is the author's attitude toward the proposed Supreme Court of the United States? Which statements or phrases in the document support your opinion?


What recommendation does the author make?


Compare this document with The Federalist Number 78. What are the major points on which the authors disagree? On which point(s) do they agree?


How would the United States be different today if the proposals outlined in the Anti-Federalist had been accepted?


Consistent with the principle of representative government?



Why or why not?



What other way could the right of minorities be protected from the majority?


Groups position on how rights of the minority should be protected:


Defense:

 

[Annie]

Seriously, this is High School civics stuff. Marbury vs. Madison? Ring a bell? "Hate" judicial review? It's one of the most important checks and balances. The legislative branch writes the laws, the judicial interprets and maintains Constitutional integrity, and the Executive enforces. If you hate judicial review I'd like to know how you feel about jury nullification.

actually one may argue that it's the very beginning of legislating from the bench. Why do I get the idea you wouldn't agree with that?

 

[Annie]

Seriously, this is High School civics stuff. Marbury vs. Madison? Ring a bell? "Hate" judicial review? It's one of the most important checks and balances. The legislative branch writes the laws, the judicial interprets and maintains Constitutional integrity, and the Executive enforces. If you hate judicial review I'd like to know how you feel about jury nullification.

Well?

 

[strollingbones]

i hope you arent reading that aloud.....unless this conference goal is death by boredom...sorry just no way to make it fun....could you work some school house rock in there?

 

[strollingbones]

annie the hater nun

 

[xotoxi]

Damn! This shit is hard.

I like easy stuff...like medicine.

 

[Annie]

i hope you arent reading that aloud.....unless this conference goal is death by boredom...sorry just no way to make it fun....could you work some school house rock in there?

Simpatico. LOL! I use Schoolhouse Rocks before each 'big' idea. You really rock bones.

 

[ZhaoYun]

actually one may argue that it's the very beginning of legislating from the bench. Why do I get the idea you wouldn't agree with that?

I don't know why you'd think I wouldn't agree with that. I do. It's a fluid system, and when the bench gets too big for it's britches the other branches kick in, the executive by modifying its appointment strategy, and the legislative with perhaps the ultimate power, constitutional revision/amendment. I do think its an important part of the process. Somebody has to interpret the black letter. Somebody has to represent the spirit of the law, and that somebody is de Judges.
I haven't read your homework yet. I'll take a run at it now.
Are you really a Nun?

 

[Baruch Menachem]

Seriously, this is High School civics stuff. Marbury vs. Madison? Ring a bell? "Hate" judicial review? It's one of the most important checks and balances. The legislative branch writes the laws, the judicial interprets and maintains Constitutional integrity, and the Executive enforces. If you hate judicial review I'd like to know how you feel about jury nullification.

Actually, if you read the text of Marshall's opinion, he did not claim the right of Judicial review. Instead he said that if there was a case where there was conflict between the constitution and a law passed by the legislature, the constitution would have the greater authority, as the laws could not be passed in opposition to it. In effect, his opinion was not that the court had the right to toss out laws it didn't like, but the court was not allowed to enforce laws which contradicted the constitution.

It is a very important bit of hair splitting on Marshall's part, that lots of folks have forgotten. It is one of the reasons folks got so mad at the Warren court, was that folks thought that the courts had usurped the authority to actively review laws, rather than just decide cases where laws might be in conflict.

 

[editec]

Remember that the system of checks and balances does not leave the Congress entirely powerless.

If the Supreme Court goes completely haywire...

Section 4

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

Now as we all should probably know by now, no real CRIME is necessary to impeach somebody.

Since impeachment is really a political act, any damned thing that Congress decides can qualify as a "misdemeanor".

It, therefore, merely takes the political will to remove even a Supreme Court judge.

Hence even the Supreme Court judges, complete with their lifetime appointments are (theoretically at least) not above the will of the "people"

 

[Xenophon]

If I did your homework for you, you would never learn.

See?

Its for your own good.

 

[Annie]

i hope you arent reading that aloud.....unless this conference goal is death by boredom...sorry just no way to make it fun....could you work some school house rock in there?

LOL! I use Schoolhouse Rocks alot! "Conjunction Junction" and All the America Rocks. Kids' fav? I'm Only A Bill.

 

[Annie]

Seriously, this is High School civics stuff. Marbury vs. Madison? Ring a bell? "Hate" judicial review? It's one of the most important checks and balances. The legislative branch writes the laws, the judicial interprets and maintains Constitutional integrity, and the Executive enforces. If you hate judicial review I'd like to know how you feel about jury nullification.

Actually, if you read the text of Marshall's opinion, he did not claim the right of Judicial review. Instead he said that if there was a case where there was conflict between the constitution and a law passed by the legislature, the constitution would have the greater authority, as the laws could not be passed in opposition to it. In effect, his opinion was not that the court had the right to toss out laws it didn't like, but the court was not allowed to enforce laws which contradicted the constitution.

It is a very important bit of hair splitting on Marshall's part, that lots of folks have forgotten. It is one of the reasons folks got so mad at the Warren court, was that folks thought that the courts had usurped the authority to actively review laws, rather than just decide cases where laws might be in conflict.

Actually, the court cannot enforce any law, they don't have the mechanisms.

Justice Marshall has made his decision. Let him enforce it. -Andrew Jackson

Your analysis of Marshall's opinion, and unanimous agreement of the court, is close, but wrong conclusion.

 

[Diuretic]

What is the power of judicial review and how was it established in the United States?

Is any of this agreed yet? Just let me clarify that. I don't see this as being a case where we all line up behind our well-known barricades and lob opinion grenades at one another (which is fun ) but it's more a straight question (if a compound question), is it not?

So - trying to help here (be afraid...etc) is the power of judicial review agreed in its description?

If so, has how it was established in the US agreed? I read the references to Marbury but Annie you seemed to have the view that there was more to it than that. Is that correct?

 

[Annie]

What is the power of judicial review and how was it established in the United States?

Is any of this agreed yet? Just let me clarify that. I don't see this as being a case where we all line up behind our well-known barricades and lob opinion grenades at one another (which is fun ) but it's more a straight question (if a compound question), is it not?

So - trying to help here (be afraid...etc) is the power of judicial review agreed in its description?

If so, has how it was established in the US agreed? I read the references to Marbury but Annie you seemed to have the view that there was more to it than that. Is that correct?

Well after tomorrow I won't think about it again until probably October, but here is what I will 'report' tomorrow. It ends abruptly because another 'team member' will pick up there:
My paper is double spaced and aligned correctly, I'm too tired to fix it here.

Pretty much what Baruch Menachem wrote regarding how Marshall concludes the Constitution is 'higher law' and that it is the judiciary's place to interpret and determine constitutionality is correct. He missed it regarding enforcement. I'm assuming with the Warren Court he's referring to national guard being brought out to enforce segregation or something along that line. Of course that was Justice, (executive) not the courts. (See Jackson quote.)

The power of judicial review is defined in the text, “We the People” as, “The power to declare what the Constitution means and whether the actions of a government official violates the Constitution.
In the precedent setting case of Marbury V Madison, John Marshall asserted, “It is emphatically the province and duty of the judicial department to say what the law is.” According to Marshalll, judicial review rests on the following premises:
• The people exercised their sovereign power when they adopted the Constitution. The Constitution is a superior, paramount law that cannot be changed by ordinary means.
• Particular acts of Congress, the executive, and the states reflect temporary, fleeting views of what the law is.
• Acts of Congress, the executive, and the states that conflict with the fundamental law of the Constitution are not entitled to enforcement and must be disregarded.
• Judges are in the best position to declare what the Constitution means. By striking down laws and acts that conflict with the Constitution, they preserve the nation’s fundamental law and the true will of the people.

While judicial review is not mentioned in Article III of the Constitution, both the Federalists and the Anti-Federalists assumed that the Supreme Court would exercise this power. The practice traces its roots to the seventeenth century English system of law. In 1761 the first significant American elaboration of Dr. Bonham's Case occurred, (1610). James Otis, in the Writs of Assistance Case in Boston, argued that British officers had no power under the law to use search warrants that did not stipulate the object of the search. Otis based his challenge to the underlying act of Parliament on Bonham's Case, the English Constitution, and the principle of “natural equity.” John Adams subsequently adopted this reasoning to defend the rights of Americans by appeal to a law superior to parliamentary enactment. Although colonial courts resisted such radical assertions, these claims nonetheless made the idea of judicial review an important feature of American constitutionalism. It was well known and used by most state courts before the adoption of the Constitution. Alexander Hamilton defended the power in Federalist 78:
“A constitution is in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning.”

 

[Diuretic]

So, prior to the British being driven out of the colonies British law applied. I would think that when the Brits left, the colonists then started with a clean slate. But in doing so is it the case that the Americans decided how their laws would work but they used the parts of British (English) law they thought were beneficial?

So, was judicial review embedded in the new American law? Another question is, was it "found" in Marbury?