250 word discussion response 12

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Instructions: Do not include statements such as great work, or excellent post. Try to include information that is challenging and respectful and that will stimulate debate. Additionally, please remember that simply posting the main post and a student colleague response post does not end the forum; the discussion forum should be dialogue that is continual until the Sunday deadline. Also, be mindful of including references and citations whenever citing facts to support your position.

Response posts 250 words and 1 reference for support is also the minimal expectation; APA 6th edition citations and references.

Respond to:

Chief Justice John Marshall wrote the majority opinion in Marbury v. Madison (1803) and established the precedent of judicial review; that is, asserting the duty of the court to strike down laws passed by the legislature that are unconstitutional. Indeed, Marshall refers to this process as “the very essence of judicial duty.” Marshall found in this specific case that the Judiciary Act of 1789 was inconsistent with Article III Section II of the Constitution. What Marbury v. Madison changes is massive: Going forward the courts have the power of judicial review, and it has been leveraged ever since.

Judicial review, it turns out, is by design, though not explicitly stated in the Constitution. Alexander Hamilton argues in 1788 in Federalist 78 that “the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments.” Thus, Hamilton states that the courts must have the ability to check the authority of Congress. Furthermore, Hamilton writes in Federalist 78: “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm…that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” Thus, prior to the Constitution being ratified, Hamilton made the case for judicial review, that is, legislative acts that are contrary to the Constitution are invalid; furthermore, Hamilton argues for what becomes Article VI of the Constitution, the supremacy of the Constitution.

Judicial activism is an effort to use the power of the Judiciary branch to solve a political and/or social issue that the legislature has failed to address. There are myriad examples of judicial activism throughout our history, where the work of “activist judges” is decried and calls for judicial restraint are made. Judicial restraint is where judges deliberately restrict their own power, and defer to Congress on matters of social policy. One such example of judicial activism is Chief Justice Taney’s infamous decision in Dred Scott v. Sandford (1857) establishing that enslaved black Americans not only did not have standing in court, they also were not citizens, thus the ruling attempted to codify slavery and non-citizenship rights of the enslaved. Taney argued he was trying to solve the issue of slavery, but history saw that the decision fast-tracked the Civil War. Constitutional scholars consider this the worst supreme court decision in our great nation’s history, but it also was an example of judicial activism that turned out to not be in the public interest.

Another example of judicial activism that was actually in the public interest was Brown v. Board of Education of Topeka (1954) where Chief Justice Earl Warren found that “separate but equal” facilities are by their very nature unequal, thus violating the equal protection clause of the 14th Amendment of the Constitution. At this time, African Americans in many US states were subjected to the Black Codes, local customs and laws that treated African Americans differently, including segregation of public schools. By upholding the 14th Amendment as good law, the Brown v. Board decision opened the door for enforcement of all aspects of the 14th Amendment, including citizenship rights, due process and equal protection, cornerstones of the rights of all Americans.

Thus, I would argue that judicial activism has sometimes carried incredibly unfortunate consequences (Scott v. Sandford) but more often than not it’s been an essential function of the courts, to enforce the Constitution in the interest of the rights of all Americans.

If it is argued that judicial activism is always not in the public interest, that the courts are overreaching in their authority, the counter-argument is simple: The Legislature, the great body of the people, must respond to the will of the people and actually govern. When over 400 bills passed by the House go to die in the Senate without even being read by committee (currently what has happened under the McConnell Senate) the Legislature is demonstrably failing in its duty to act in the best interest of the people. So, for those who find judicial activism to be a problem, I would argue they should start with getting the Legislature to actually legislate.

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