This website uses cookies to ensure you have the best experience. Learn more

The Judiciary And Republicanism Essay

1939 words - 8 pages

The United States promotes itself as being based on the principle of popular sovereignty, that is, the people’s capacity for self-government. The latter is secured by the existence of the higher and fundamental law that is the constitution. Indeed, article VI section 2 of the constitution states that it is the «supreme law of the land» by which the judges shall be bound. This fundamental law was «establish[ed] and ordain[ed]» by the people of the United States according to the preamble of the constitution; it thus follows that the people are sovereign. Nevertheless, one has to investigate the device by which it is assumed that the people have, in effect, established the constitution. One can presume, with no great difficulty, that it is not feasible to draft a constitution by concerting every individual of the United States on what should be included in it. The Philadelphia convention of 1787 assembled delegates from all states to discuss the drafting of the constitution. Although the delegates were representatives of their states, it is the process of ratification that substantiated the republican principle of popular sovereignty. Thus, it is the ratification of the Constitution that enables it to be «empowered by the people [and gives it] a truly legal authority» (Paine, 28).
One could initiate a debate on the process of ratification and its true value in assessing popular sovereignty. However, such an argument implies that one further examines the nature of the people, therefore leading us to digress from the purpose of this paper. Hence, one is accepting that the ratification process does account for the manifestation of popular sovereignty, thus confirming that the Constitution was «establish[ed] and ordain[ed] by the people of the United States».
By ratifying the Constitution, the people consented to its laws and provisions including the role that is given by the judiciary. Judicial review, that is, the capacity to «say what the law is [...] and to interpret and expound» it, was made explicit by Chief Justice John Marshall in the case Marbury v. Madison, presented to the Supreme Court in 1803. This case conferred to the judges the power to interpret what is, or is not, in accordance with the Constitution. One may argue that judicial review was an ex post facto attribution of power to the judiciary, the people did not consent to it when they ratified the constitution, thus making judicial review unconstitutional. However, John Marshall merely made explicit a power that was implicitly attributed to the Supreme Court by the Constitution in article III, section 2:
«The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority [...]»
Not only is this paragraph vesting in the judges the power to assign meaning upon the Constitution, the laws of the United States and its treaties; but it also enables...

Find Another Essay On The Judiciary and Republicanism

Lack of Diversity in the Judiciary

1345 words - 6 pages It is widely acknowledged that the judiciary within England and Wales is not representative of the wider society. The composition of the judiciary is regularly subject to criticism on its apparent homogenous identity’ being largely comprised of elderly, white male barristers educated at Oxford or Cambridge. This ethos has prevented diversity within the judiciary, particularly the upper echelons of the judiciary. Academics

republicanism Essay

2541 words - 11 pages having a country without a monarchy was absurd. All of the nations in the world, up to this point, had a form of monarchical power. Therefore, republicanism was a deviant ideology that questioned the political ideology of the eighteenth century. The origin of republicanism can be traced back to ancient societies, such as the Greek and the Romans. However, the period discussed will start in the Seven Year War between England and France. It is

Absolulely Absolutism - Analysis of Political Structure in Shakespeare's Coriolanus

1648 words - 7 pages comprehension of literature, shows the "attitude of the author towards the subject matter." Shakespeare immediately introduces contradiction between the plebeians and patricians in the first scene. Absolutism versus republicanism - an unavoidable theme of Coriolanus. Applying the concept of tone, how does Shakespeare feel? More importantly, does Shakespeare side with republicanism or absolutism? Through an analysis of Shakespeare's Coriolanus, along with

A Supreme Constution

753 words - 4 pages The creation of a supreme law constitution, as enforced by the judiciary would not only change the constitutional system of New Zealand but also enhance the power of the judiciary. Currently, New Zealand does not have a supreme law constitution, instead an unwritten constitution and constitutional principles incorporated into other areas of law. The Judiciary currently has the ability to check the other branches but its powers are weak

The American Revolution, an unified movement of colonial forces fighting against the imperial British

2763 words - 11 pages forms of republicanism emerged in the early 18th century when after the collapse of Catholicism, English philosophers began to reflect upon the first of the great republics in Rome and Greece. This evaluation of the history of these two empires created and propelled republicanism into a revolutionary context. For the first time in modern history, the ideas of the old republics were being studied, evaluated and even practiced. The foundations of

Being American: Liberty, Equality and Republicanism

1004 words - 4 pages himself to the political ideology centered on the abstract ideals of liberty, equality, and republicanism” (31). Therefore, being American simply means having the same views about equality, liberty and republicanism as our American ancestors. Being an American is clearly stated in the Declaration of Independence. For instance, according to Carrie Shanafelt, Benjamin Franklin stated, “Those who would give up Essential Liberty to purchase a little


967 words - 4 pages congressional power under the doctrine of “original intent” and to use the federal judiciary to return more authority to state and local government. At the beginning of the third millennium, the Supreme Court was bitterly divided over states’ rights, with five justices generally seeking to curtail the application of laws and four justices insisting upon upholding Congress’s power to apply the Bill of Rights to the states to prevent them from infringing on an

More than a Radical Revolution

906 words - 4 pages . This small group became dependent on the trust they had between each other and strong personal relationships. The republicanism that both the previous colonist and the citizens during the revolution share became so strong that the previous monarchial ways were dissolved. This new change leads to Woods overall thesis that the country went through an overall social revolution. Although the vision for the new America was to have a society with high

The Republic in Shakespeare´s Julius Caesar

1467 words - 6 pages concept of Classical Republicanism, often also called Civic Republicanism. The idea of Classical Republicanism developed in the Renaissance inspired by the governmental forms and writings of classical antiquity, especially Aristotle, Polybius, and Cicero. Classical Republicanism is built around concepts such as civil society, civic virtue and mixed government. Moreover, the prima facie ideal that this movement sought was a government that heralded

Articles of Confederation

1056 words - 4 pages of that era, who were trite of monarchies and dictatorships. In order to limit the power of the federal government, the Articles of Confederation created one without sufficient power to manage effectively, which led to serious domestic and foreign problems. The federal government under the Articles of Confederation had neither an executive branch nor a judiciary branch. Thus, the central government lacked enforcement power. Under the

A Supreme Law Constitution

1166 words - 5 pages constitution is not a supreme form of law. The idea of a supreme law constitution is that when ordinary law conflicts with constitutional law it can be declared void by the courts. Codifying all individual constitutional documents and conventions into a supreme law constitutional, would result in a greater check on legislative power. This would result as the Judiciary could strike down legislation if it did not align with the constitutional

Similar Essays

The Penal And Judiciary System: The High Cost Of Incarceration

2280 words - 9 pages whether these nonviolent criminals at all. Instead of sending these pot offenders to prison the judiciary system should sentence the people to community service and so that they can give back to the community by keeping their jobs which allows them to pay restitution to the state from court costs and the police force by paying fines, they could also stay with their families, pay taxes, pay child support if needed and possibly pay for their own drug

Malaysia: Rule Of Law And Independence Of The Judiciary

6151 words - 25 pages order to secure its independence and impartiality.This paper aims to draw attention to the spirit of constitutionalism by giving focus to this one crucial aspect of the democratic system, that is the Rule of Law, and examine the issue of how the Rule of Law can be seen to have been undermined in Malaysian society. In this regard the independence of the Judiciary will be examined, drawing much attention to the Judicial crisis of 1988. The events

The New Science Of Politics Essay

1039 words - 4 pages #23 in reference to the separation of powers. The basic concept here is the idea of the federal government being divided into three separate branches that would balance excessive democracy through a system of checks on each other. The three branches, respectively known as the legislature (Article I), the executive (Article II), and the judiciary (Article III), were designed to entice the opponents of the Constitution to ease the threat of misuse

Articles Of Confederation Vs. The Constitution

839 words - 3 pages in the past had ever tried or succeeded with the ideas of republicanism. America's first constitution was called the Articles of Confederations and it was drafted in 1777. This constitution only lasted for eleven year because the Federalists wanted to strengthen the government. In 1788, the new Federal Constitution was ratified by all the states except North Carolina and Rhode Island. In Document A, James Madison discusses how the "smallest state