Judicial Dictatorship

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Transaction Publishers, 1995 M01 1 - 143 páginas

American society has undergone a revolution within a revolution. Until the 1960s, America was a liberal country in the traditional sense of legislative and executive checks and balances. Since then, the Supreme Court has taken on the role of the protector of individual rights against the will of the majority by creating, in a series of decisions, new rights for criminal defendants, atheists, homosexuals, illegal aliens, and others. Repeatedly, on a variety of cases, the Court has overturned the actions of local police or state laws under which local officials are acting. The result, according to Quirk and Birdwell, is freedom for the lawless and oppression for the law abiding. Judicial Dictatorship challenges the status quo, arguing that in many respects the Supreme Court has assumed authority far beyond the original intent of the Founding Fathers.

In order to avoid abuse of power, the three branches of the American government were designed to operate under a system of checks and balances. However, this balance has been upset. The Supreme Court has become the ultimate arbiter in the legal system through exercise of the doctrine of judicial review, which allows the court to invalidate any state or federal law it considers inconsistent with the constitution. Supporters of judicial review believe that there has to be a final arbiter of constitutional interpretation, and the Judiciary is the most suitable choice. Opponents, Thomas Jefferson and Abraham Lincoln among them, believed that judicial review assumes the judicial branch is above the other branches, a result the Constitution did not intend. The democratic paradox is that the majority in America agreed to limit its own power.

Jefferson believed that the will of the majority must always prevail. His faith in the common man led him to advocate a weak national government, one that derived its power from the people. Alexander Hamilton, often Jefferson's adversary, lacking such faith, feared â the amazing violence and turbulence of the democratic spirit.â This led him to believe in a strong national government, a social and economic aristocracy, and finally, judicial review. This conflict has yet to be resolved. Judicial Dictatorship discusses the issue of who will decide if government has gone beyond its proper powers. That issue, in turn, depends on whether the Jeffersonian or Hamiltonian view of the nature of the person prevails. In challenging customary ideological alignments of conservative and liberal doctrine, Judicial Dictatorship will be of interest to students and professionals in law, political scientists, and those interested in U.S. history.

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Página 49 - At the same time the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.
Página 61 - It is of great importance in a republic, not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part.
Página 33 - The interpretation of the laws is the proper and peculiar province of the Courts. A Constitution is, in fact, and must be regarded by the Judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular Act proceeding from the Legislative body.
Página 72 - I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.
Página 66 - Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him? Let history answer this question.
Página 90 - A zeal for different opinions concerning religion, concerning Government, and many other points, as well of speculation as of practice ; an attachment to different leaders ambitiously contending for preeminence and power ; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other, than to cooperate for their common...
Página 90 - To secure the public good and private rights against the danger of such -1 faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are Directed.
Página 68 - Britain; and that the King's Majesty, by and with the advice and consent of the Lords spiritual and temporal and Commons of Great Britain in Parliament assembled, had, hath and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the Crown of Great Britain in all cases whatsoever.
Página xv - I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image...
Página 79 - If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

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