Facebook Pixel Code
x
We use cookies to create the best experience for you. Keep on browsing if you are OK with that, or find out how to manage cookies.

Jconstitutional Law

This is a preview of the 8-page document
Read full text

In 1796, the Supreme Court annulled a Virginia law on the ground that it was against the spirit of a 1783 peace treaty with Britain. Again, in 1803 Marbury v. Madison case provided an opportunity to the Supreme Court to assert its powers. The Marbury v. Madison case was one of the landmark cases in the United States’ constitutional history, which empowered the United States’ Supreme Court with the power of judicial review. The judicial review empowers the Supreme Court to cancel or void the pronounced acts of the federal and state governments, which are against the spirit of the constitution.

And, thereby, actions of both legislature and the executive are brought under the purview of the Supreme Court. Judicial review, a new weapon in the hand of the judiciary in the early nineteenth century, raised many questions around the application of judicial rights vis-à -vis the legislative powers. What stands should be taken about judicial review? Should judges try to restrain themselves? Should judges utilize the opportunity to enhance the scope of interpretation of the constitution? III. Judicial Restraint and its Wider Impacts Proponents of judicial restraint argue that the courts should respect all acts of the federal legislature and state legislatures, which are not contrary to the spirit of the constitution.

The concept of judicial restraint upholds the idea of division of powers wherein sovereign powers of the state are divided into three organs of the state; the legislature, executive, and judiciary. In such a system, every organ performs its duties and concentration of power is avoided through checks and balances. Judicial restraint adheres to the idea of separation of power and as a result, interference in the work of legislature and executive is avoided.

The idea of judicial restraint is somewhat opposite to judicial activism. Judiciary should follow maximum restraint and should not exercise judicial review to interpret to advocate new ideas or policies. The notion of judicial restraint firmly asserts that judges should not strike down laws. Certainly, it could be possible only while dealing with rare cases. Such rare cases are understood as involving legislative violation of constitutional provisions. In short, the underpinning the judicial restraint is that judges should adhere to as their fundamental duty, which is an interpretation of the law, and should not interfere in the domain of executive and legislature.

Luther v. Borden, 1849 is one of the pioneer cases in the advocacy of judicial restraint (Hall, 2005).

This is a preview of the 8-page document
Open full text
Close ✕
Tracy Smith Editor&Proofreader
Expert in: Law, History, Culture
Hire an Editor
Matt Hamilton Writer
Expert in: Law, Politics, Religion and Theology
Hire a Writer
preview essay on Jconstitutional Law
WE CAN HELP TO FIND AN ESSAYDidn't find an essay?

Please type your essay title, choose your document type, enter your email and we send you essay samples

Contact Us