Judicial Branch Term Paper
- Length: 8 pages
- Subject: Business - Law
- Type: Term Paper
- Paper: #91968650
Excerpt from Term Paper :
These two questions will be responded to simultaneously as the answer to one will always involve touching on issues concerning the other.
When we speak of three (3) departments or branches of government then we must necessarily refer to the "presidential system" of governance. These three co-equal and co-independent departments are the Executive, the legislative and the judiciary.
The executive as its name connotes, has the main duty to faithfully execute the laws and the constitution. The legislature enacts or makes laws and the judiciary interprets them and says if the provisions of said law are not in conflict with the constitution. It likewise can decree if the execution made by the executive is in accordance with the laws and the constitution. On the basis of these basic postulates we will now proceed to determine if the judiciary is the weakest or the strongest among the three branches of government. However, before going any farther, we must always remember that these departments, in the performance of their mandates, functions if you may, are subject to definite legal and/or constitutional restrictions.
The courts for example are mandated to always align their decisions with the constitution so that if it finds in a law, under consideration, an interpretation that appears repugnant to the provisions of the constitution or its spirit, then it is compelled to strike down and set aside that interpretation for being unconstitutional.
The deeper question, however, is this: If these constitutional restraints are ignored with impunity and the judge proceed with abandon and decides a case on the basis of his personal preferences and beliefs, will this unauthorized exercise make him stronger than the legislature which enacted the law. A comparative reading of the several discourse by different authors on the subject of a wayward judiciary, will reveal a common belief that the court rendered its decision strictly in accordance with and within the confines of its restricted powers. Some prefer to call this "judicial activism." It should instead be labeled as "judicial vandalism" and subject the erring judge or judges to disciplinary action and impeachment.
Obviously, this paper conforms with the position that the judiciary is the weakest among the three departments of the government, for reasons, in addition to those given above, as follows:
Further on the subject of "judicial activism" where according to AP Government. com. The justices of the Supreme Court "may try to read into the vague wording of the constitution and stretch the boundaries of what the constitution says" Initially, this act of interpreting the meaning of vague provisions of the constitution or a law is, as a matter of fact, a major part of a court's function. There appears nothing wrong with a court exercising that function in that manner What is deplorable is the act of "stretching the wording, meaning and intent of its provisions beyond what the constitution says intentionally and with malice to support a particular principle, ideology or person. Conversely no matter how wrongful the interpretation may be, if it was arrived at in good faith, unattended with any persuasion of gain or advantage, such ruling must be sustained. Assuming now that the justices in fact confederated with one another and decided an issue in a manner that runs afoul with the constitution, will this make it a stronger branch?
Surely not! While it may have caused its account of strength to be credited with a misdeed, it has also debited his personal ledger account with an offsetting administrative or criminal liability thereby resulting to a zero net worth
There is no added strength if there is a corresponding weakness for an undeserved and wrongful assumption of power.
The same source laments that Supreme Court Justices engage in a vulgar display of power when they give trial lawyers a hard time during oral arguments of a case before it by asking difficult questions after having the luxury of knowing well in advance the facts and the laws involved.. So what's wrong with that. Does that make the Supreme Court more powerful? Not so. Being prepared to listen to oral arguments is admirable, a sign of diligence, a virtue. No matter if a case is decided strictly on the basis of the ideology of the "ponente" (decision writer) as long as it is shared by the others unanimously, or in the majority then it is in accord with his sworn duty. Were not laws passed on the basis also of the principles shared by a majority of the members of congress? That placed them on the same footing.
3) Justices to the Supreme Court are nominated by the president
Those nominated very often than not share in common the political beliefs and ideology of the president. This practice has flourished and endured not without any reason. Indeed, gratitude has discreetly if not lavishly been expressed in not a few instances. Under this situation where debts of gratitude are expected to be repaid, will the justices feel more confident, independent and more powerful than the president to whom they may be beholden?
The courts have no enforcement powers.
It must be emphasized that nowhere in the constitution is it provided that the Supreme Court or its subordinate courts shall have the power to enforce its judgment. It has to call on the executive branch for the latter to exercise its power of execution of final decision on the principle that such ruling has become part of the law of the land, which call may unfortunately be refused. This lack of power was best exemplified in the 1832 case of Worcester v. Georgia where chief justice John Marshall ruled that "the U.S.
A government had no right to move the Cherokee Indians off their land in Georgia" In response, President Andrew Jackson, who was obviously against the ruling, said "John Marshall has made his decision; now let him enforce it" The decision was not enforced and instead the Cherokee Indians were moved off their land.
The legislature, likewise, in response to an unpopular decision of the courts may attack instead the basis used in support thereof. If it was the constitution, then the congress may propose that a constitutional assembly be convened, propose amendments in pursuance of their position and then vote in favor of the proposal, which they may be able to do so as members of that constituent assembly. If the basis of the decision is a mere statute, then congress may simply repeal that law or significantly amend it to suit their position.
Congress, likewise as a means of defeating the court's ruling, may decide to go after its necessities by limiting the funds to implement the ruling or at least delay its release.
CNN.COM commented through William Mears that while the framers of the constitution envisioned the judiciary as the "weakest" and "least dangerous" of the three departments of government, it has now chosen to flex its muscles and shed its timid image. Its recent rulings has "far reaching consequences" in matters of legalizing abortion, integrating public schools etc..
A which have seriously affected the lives of Americans.
Mears' comments on the metamorphosis of the judiciary's attitude is no cause for alarm because the safeguards have been and are still in place. Their availment is up to the legislature who must come up with laws to remove the ill effects, if any, of the undesired rulings.. Again, notwithstanding the unpopularity of the decisions, the same did not work to strengthen the proposition that the judiciary is a stronger department because said decision is short-lived and does not have the character of permanency being always subject to the prerogatives of congress for its continued existence.
8. John Nowacki, Deputy Director of the Free Congress Foundations Center for Law and Democracy decries that nominations for positions in the judiciary have been used by politicians from both the legislature and the executive departments to secure political favors and cries out loud as to "When will they take this seriously?' Considering that judiciary positions are "peddled" like goods in the political market, how can the products be stronger than the "buyers" who will only use them.
9.. In a Free Congress commentary of March 1,2002, writer Tom Jipping, argues that while it may be permissible for members of congress to base their political decisions on personal views, the same cannot be done by the judiciary who has to strictly adhere their rulings on the law or the constitution. While seemingly justices are now beginning to adopt the stance of their legislative counterpart in using either their political or personal views as basis for their decisions, there is not much reason to push the panic button because the constitutional and legal safeguards are still very much available and have not been curtailed.
10. Edwin L. Meese in his article at the Hoover Digest (1997 No.4) expressed his deep concern over what he calls " runaway judges" who exceeds their proper interpretative roles. While expressing fear, Meese, however., confidently suggested workable solutions…