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Originalism Vs Living Constitution Theory

361 Words2 Pages

The judiciary has become more and more involved in policy making in recent years, and many citizens and politicians ask how far should judges go interpreting a law. Should they really have the power to impose laws that go against the representatives, that have been elected by the people? Those are the questions that get asked frequently and the constitution is silent on the subject. The two main theories preval are the originalism and living constitution theories. To sum it up, the originalism theory states ¨the constitution should be interpreted in a way that it would have been interpreted when it was written¨, whereas living constitution theory states that ¨the framers made the constitution flexible for interpretation¨. Both theories have a solid foundation for their belief, with one stating that laws the judiciary makes, drifts too far away from what the framers wanted, and the other theory states that as times change so should the laws. …show more content…

Similar to the originalism theory, judicial restraint holds that ¨judges should defer to precedent and decisions made by legislature´s¨(Patterson 470). Whereas judicial activism(similar to living constitution theory) holds that ¨judges should actively interpret the Constitution, statutes, and precedents in light of fundamental principles and should intervene when elected representatives fail to act in accord with all these principles”(Patterson 470). Advocates of judicial activism believe in the importance of majority rule but do not believe the courts should blindly uphold decisions of representatives. A recent example of judicial activism would be in a court's 2010 ruling on campaign

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Federalist No. 78 Summary

63 Words | 1 Pages

There was discussion of judicial review in Federalist No. 78, written by Alexander Hamilton, which explained that the federal courts would have the power of judicial review. Hamilton stated that under the Constitution, the federal judiciary would have the power to declare laws unconstitutional. He also stated that this was appropriate because it would protect the people against abuse of power by Congress.

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Pros And Cons Of Marbury V. Madison

863 Words | 4 Pages

First, it does not always reflect the will of the people. Since it is the people who elect the Congress and the President, I believe their will should prevail. The Supreme Court should obey the will of the people rather than relying on interpretation of the constitution. Also, Judicial Review may cause a president or Congress to delay some activity or law until they get an opinion from legal advisers as to the constitutionality of the action or law, (Clinton, 1989). This might affect solving some essential matters of urgency lest the Supreme Court rules against it

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Dbq Judicial Review

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The judicial review strengthens the constitutional principle of checks and balances. In the 1789 judiciary act and Judiciary act of 1801 had the right to allow the writs of mandamus. Meaning that they court should have power and including the fact that they are forced to do something. John Marshall weakened the power of the supreme court by getting rid of the power. However he did improve the branch by creating the judicial review.

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How Did Adams Reduce The Number Of Federal Judges In The Court

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Shortly after, the Court found that the Judiciary Act of 1789 conflicts with the Constitution. Since the Constitution is defined to be a supreme law, the Supreme Court strikes down laws that conflict with the Constitution. In consequence, this case gained the court the power of Judicial Review and maintained the status of the Judiciary as a co-equal branch of

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Court System: The Marbury Vs. Madison Case

610 Words | 3 Pages

Madison case implications was the establishment of a precedent, which is a legal decision to serve as an example in other court cases. The court is interpreted as having the power to review the acts of the congress as well as that of the president and thus can overrule the laws it finds to be unconstitutional. The bold ruling decision also established the Judiciary as an equal partner with the legislature and the Executive in completing the government system. In this regard, the constitution is the supreme law of the land and it is the Supreme Court that interprets the meaning of the constitution. It is, therefore, the duty of the judiciary to say what the law

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Constitutional Dbq Essay

1227 Words | 5 Pages

On the off chance that the Supreme Court did not set up translations of the Constitution when choosing on the off chance that they ought to topple an elected law, then there would be no positive understanding in the national government with reference to how certain parts of the Constitution ought to be seen. The Constitution is frequently thought to be the standard that all laws ought to conform to. On the off chance that there was no clear elucidation to the Constitution on a government level, than it would be troublesome for individuals from Congress to attempt to make laws that agree to the Constitution if there is no distinct intending to the Constitution's rights. Likewise, individuals from Congress may attempt to contend that the Constitution ought to be translated certainly just to guarantee that a law they support can get passed. There are a few individuals who might contend that if only one branch of government has the ability to decide how the Constitution ought to be translated, then this branch would turn out to be too effective.

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The Core Of The Case Against Judicial Review By Jeremy Waldron

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Sophie Byrne John Ward POLI 100 29 March 2023 Two Week Essay Assignment Week 10 & 11 In "The Core of the Case Against Judicial Review," published in the Yale Law Journal, Jeremy Waldron argues against the concept of judicial review, which is a concept allowing courts to strike down laws that are deemed unconstitutional. Waldron argues that this concept undermines democracy and should be replaced by a system of parliamentary sovereignty; where the legislative branch holds the power to determine the final outcome when interpreting the constitution.

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Explain The Strengths Of The Judicial Branch

1067 Words | 5 Pages

Ultimately, the judicial branch has to go back to what the founding fathers intended for the court’s purpose and to use the power accordingly. To maintain the strength of the branch, the courts must think about what is constitutionally right. Their decisions should reflect the amendments as well. “Judicial power plays an important role in the rule of law, even while it comes frequently into tension with norms of democratic rule” (Friedman & Delaney, 2011, p. 57, para. 1). This is the only way that citizens will feel like their rights are truly protected.

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John Marshall granted the judicial branch complete say over the content of laws and if there were any contradicting laws that the judicial branch would get to decide what was best for the

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Compare the history of how we got to our current constitution to something else and why that is so? A constitution is literally a rule book. It states many different things in it. It sets up major governing institutions, assigns institutions their given power, and places explicit and implicit control on power that given to them. A constitution establishes literal legitimacy, it’s the real deal.

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Judicial Restraint Vs. Judicial Activism

557 Words | 3 Pages

However, judicial activism is the other way the Constitution can be interpreted and differs from Judicial restraint because unlike judicial restraint, it changes along with society and can be changed and added to. Judicial activism changes with society like mentioned already so therefore is more effective and up to date. While Judicial restraint is good to use when a law

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Advantages Of The Living Constitution Approach

391 Words | 2 Pages

The meaning of the Constitution may be puzzling and unclear but I find that the Living Constitution approach is the most practical for making judgements about particular cases. If I were a justice in the Supreme Court, I would use this approach because it’s based on a system that the document of the Constitution sets up a set of timeless principles that are applied in today’s world and not simply based on the time when it was written. The Constitution should be used to help solve problems by coming up with what these principles mean when applied in today’s world. An example of this is the controversy of whether marriage can or cannot be denied to gay people because of equality.

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741 Words | 3 Pages

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Why The Judicial Branch Is The Most Powerful

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