Judicial Review The Legacy of Term Paper

Download this Term Paper in word format (.doc)

Note: Sample below may appear distorted but all corresponding word document files contain proper formatting

Excerpt from Term Paper:

As Treanor emphasizes, "What appears to be a puzzling, unconvincing, and uniquely aggressive exercise of judicial review was fully consistent with prior judicial decisions in which courts had invalidated statutes that trenched on judicial authority and autonomy" (455).

Texas v. Johnson (1989). Perhaps as no other issue in the post-September 11, 2001 climate is that of flag-burning. The debate is heated and emotionally charged, and it is easy to get caught up in the rhetoric. Nevertheless, it is important to keep in mind what the flag represents to many people and avoid characterizations that would lead to misunderstandings. The U.S. flag and - in the case of Texas v. Johnson, state flags can mean a great deal to citizens and it is natural to expect them to want their flags honored and respected. When people use the symbolism inherent in the national or a state flag, they touch buttons that are not otherwise reachable and it is not surprising to see legislation seeking to ban such activities in response. Notwithstanding the ability of flags to be used for this button-touching purpose, though, it is equally important to keep in mind just what the First Amendment is all about.

The U.S. flag and the several state flags also represent the fundamental constitutional right of all Americans to speak their minds in any fashion they desire, and this right has been expanded to include such a wide array of activities that to prohibit flag-burning just does not make sense. The U.S. flag from this perspective protects the very right of its citizens to burn it whenever they damn well please. As Raskin (2003) emphasizes, "Because 'speech' and 'nonspeech' were mixed together in the flag-burning [in Texas v. Johnson], Justice Brennan followed the Court's O'Brien standard, which requires government to show a 'sufficiently important governmental interest in regulating the nonspeech element' in order to justify any 'incidental limitations on First Amendment freedoms'" (2000). This author also notes that Justice Brennan also maintained that the asserted "governmental interest," though, must be "unrelated to the suppression of free expression" (Texas v. Johnson 414-17 cited in Raskin at 211). According to this author, "The problem for Texas was that its asserted interest 'in preserving the flag as a symbol of nationhood and national unity' was precisely related to political expression. The state wanted to control the symbolic uses of the flag to prevent anti-government messages (emphasis added) (Raskin 211). To hold otherwise, the Court reasoned, would be to sanction different treatments by different interest groups in the physical integrity of the flag. For example, to hold that the ceremonial burning of flags when they had become unserviceable was allowed but to outlaw the practice by those who wanted to burn flags for other reasons would be say that "the flag itself may be used as a symbol only in one direction. We would be permitting a State to 'prescribe what shall be orthodox'" (Texas v. Johnson 414-17 cited in Raskin at 211).


The research showed that each of the three branches of federal government enjoy certain responsibilities and rights and the system of checks and balances that exists provides some balance between them. When the Supreme Court, in its capacity as the "ultimate expositor of the constitutional text," determines that a law fails its judicial review, it would seem there is little the other branches can do to compel it to act otherwise. Certainly, in his capacity as commander in chief of the nation's armed forces, the president could surround the Court building with troops and it is likely this option has been seriously contemplated by several presidents in moments of frustration with their initiatives because of a Supreme Court decision. Nevertheless, the research also showed that the concept of judicial review, even though it is not specifically explicated in the Constitution, remains a fundamental component of the American legislative process and Chief Justice Marshall's decision in Marbury v. Madison set the stage for this concept today.

Works Cited

Black's Law Dictionary. St. Paul, MN: West Publishing Co., 1990.

Marcus, Maeva. Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789. New York: Oxford, 1992.

Raskin, Jamin B. Overruling Democracy: The Supreme Court…[continue]

Cite This Term Paper:

"Judicial Review The Legacy Of" (2008, May 03) Retrieved December 6, 2016, from http://www.paperdue.com/essay/judicial-review-the-legacy-of-30156

"Judicial Review The Legacy Of" 03 May 2008. Web.6 December. 2016. <http://www.paperdue.com/essay/judicial-review-the-legacy-of-30156>

"Judicial Review The Legacy Of", 03 May 2008, Accessed.6 December. 2016, http://www.paperdue.com/essay/judicial-review-the-legacy-of-30156

Other Documents Pertaining To This Topic

  • Judicial Review No Doubt Exists

    Tushnet (2005) defends his point-of-view by writing that the advocates of the Stuart lawsuit placed the argument that Justices of the Supreme Court, even though, had the authority to be Supreme Court Justices, but they could not be Circuit Court Judges if the position of Circuit Court Judges already taken up by others had been eradicated. Furthermore, they stated that the eradication of the Circuit Judges had been, in fact,

  • Judicial Review the Most Important American Political

    Judicial Review The most important American political institution is the U.S. Constitution. Of course, this is only a document, but it is also an institution in its own way, for it is the basis of all American political institutions and practices. It is like the DNA of our government: We would have no government without it, no road map to create our form of democracy. Unlike other democracies like Great Britain

  • Judicial Appointments Bush s Judicial Appointments an Examination

    Judicial Appointments Bush's Judicial Appointments An Examination of President George W. Bush's Judicial Appointments During the eight years of his presidency George W. Bush appointed two Supreme Court justices, 61 Appeals Court judges, and 261 Federal District Court judges. Judicial appointments can be one of a president's longest lasting legacies. The people President Bush named to the judiciary will be making decisions and affecting policy long after he leaves office. Courts today, especially

  • Changes in Supreme Court Philosophies

    Supreme Court Chief Justices Warren and Rehnquist Compare and contrast approaches to criminal procedures by U.S. Supreme Courts: The Warren vs. The Rehnquist Court A common philosophical debate within the legal community is when the approach advocated by so-called 'conservative' justices (often called strict constructionism) is pitted against more 'liberal' and freer interpretations of constitutional words and history. Throughout much of the 20th century, it was often said that the more liberal

  • China s Intellectual Property Rights Current Issues Strategic Considerations...

    China's Intellectual Property Rights: Current Issues, Strategic Considerations And Problem Solving In this paper, the focus is primarily on the Intellectual Property Rights (IPR) that are given to individuals within the Republic of China. The paper starts off by defining IPR and the different ways that IPR is provided like copyright infringement. The paper them moves on to define IPR and its progression in China through the imperialistic years, the era

  • Marbury v Madison Is an

    The Constitution gave the Supreme Court the responsibility to uphold the Constitution as the "Supreme Law of the Land," that is, supreme against Federal laws and State laws. Although each State had its own State Constitution and a Judiciary tasked with upholding the Constitution, State laws that violated the Federal Constitution could be overturned by a Federal court. The Power of the Judiciary Relative the Legislative and Executive Branches The Framers

  • Catholic Church in Spain and the United States

    Catholic church and public policy have remarked that the members of American clergy in general, without even excepting those who do not admit religious liberty, are all in favour of civil freedom; but they do not support any particular political system. They keep aloof from parties, and from public affairs. In the United States religion exercises but little influence upon laws, and upon the details of public opinion; but it

Read Full Term Paper
Copyright 2016 . All Rights Reserved