Bork Neutral Principles

The most contentious debate, however, concerns the legal principle of stare decisis. A Latin phrase, stare decisis means that judges should respect legal precedents by letting them stand instead of overturning them. It is important to note, however, that stare decisis is not found in the Constitution or the Bill or Rights; it is not the law of the land, but a “rule of thumb.” As Constitutional lawyer Robert McFarland points out, a number of Democratic congressmen have taken a sudden interest in this legal principle.

Sophie Byrne John Ward POLI 100 29 March 2023 Two Week Essay Assignment Week 10 & 11 In "The Core of the Case Against Judicial Review," published in the Yale Law Journal, Jeremy Waldron argues against the concept of judicial review, which is a concept allowing courts to strike down laws that are deemed unconstitutional. Waldron argues that this concept undermines democracy and should be replaced by a system of parliamentary sovereignty; where the legislative branch holds the power to determine the final outcome when interpreting the constitution.

However, the new trend has been to make the document mean what you want or to just disregard it and issue new laws. The modern view is that “the Constitution is what the judges say it is (p.30)”. Sutherland throughout the book that this is assumption not correct, because if this were true, than the final authority would rest with the judges, not with the people. This line of thinking is dangerous, as it makes those tasked with interpreting the Constitution essentially able to edit it to say whatever they want, regardless of what the document actually says on a matter. With the judges making wild rulings about freedoms and laws, they are undermining and assuming the duties of Congress, something they are clearly prohibited from

The rule of law is reflected as a core principle of our nation and vital to ordered liberty. To rightly govern the American rule of law it is essential to acknowledge the continuity between the American Declaration of Independence and the U.S. Constitution. The United States of America “government” is framed by these two important documents. The principles of the Declaration of Independence constitute the foundation of the government based on the universal equality of all human beings, and the U.S. Constitution founds the political process that is to be followed by the elected officials in governing the people. One cannot be without the other; both are essential for a stable government.

“Elastic Clause”. This clause is also often referred to as the “necessary and proper” or the “sweeping” clause. It can be found in article 1, section 8 of the constitution, clause 18. The “elastic clause” puts forward that Congress has the power to pass any law that they have deemed to be both necessary and proper to implement the powers that have already been delegated to the Congress. (U.S Const.

Ultimately, the judicial branch has to go back to what the founding fathers intended for the court’s purpose and to use the power accordingly. To maintain the strength of the branch, the courts must think about what is constitutionally right. Their decisions should reflect the amendments as well. “Judicial power plays an important role in the rule of law, even while it comes frequently into tension with norms of democratic rule” (Friedman & Delaney, 2011, p. 57, para. 1). This is the only way that citizens will feel like their rights are truly protected.

Mandel points out another question that relates to judicial process and the systematic principles within government regulation. He continues, in American context, judges are appointed and not elected which means there is no room for diversity. Mandel argues in this case, the Charter is not about the Rule of Law, it is about the rule of lawyers and the technique of legal argument. Although the Courts rule based on precedent, there are two ways that Mandel says the Charter is challenged when dealing with judicial review and the way judges interpret legal rights, the first challenge expresses the fact that there is no diversity when dealing with original text and the second, concerns the personal opinions of the judiciary as more substantial than those of non-government officials because of their political stance and it’s matter of “reason over passion”. In some degree, Mandel is correct when he states there is no diversity when having judges appointed rather than elected as this deters the function of the variation of individuals and the differences of

The United States Supreme Court was created by our Founders without many enumerated powers. Through legislation and precedent, the Supreme Court’s duties became apparent to the people and the other governing bodies. From judicial review to understanding unstated fundamental rights, the Supreme Court has furthered the American people’s understanding of our founding document, the Constitution. However, when it comes to the social climate of the United States can the Court dramatically change the people’s social views? There are two ways that the courts have been seen in allowing or impeding social change to be decided by the Courts.

When people think of how government works, unless they’ve taken a government class, they usually think of Congress making laws and the President doing pretty much everything else. No one pays much attention to the Supreme Court unless there is a landmark case or something else to grab the news — like the recent death of Justice Antonin Scalia. But the Supreme Court does much more than you’d think regarding keeping the political machine running like a well-oiled … machine. Through not only interpretation of the law, but also judicial activism, the Supreme Court shows it can have as much influence over the laws of the land as either of the other branches of the federal government. In this paper, I will analyze the decision-making methods of the Court using the cases of Gideon v. Wainwright and Betts v. Brady.

Alex Frost Values: Law & Society 9/23/2014 The Hollow Hope Introduction and Chapter 1 Gerald Rosenberg begins his book by posing the questions he will attempt to answer for the reader throughout the rest of the text: Under what conditions do courts produce political and social change? And how effective have the courts been in producing social change under such past decisions as Roe v. Wade and Brown v. Board of Education? He then works to define some of the principles and view points 'currently' held about the US Supreme court system.

Due to Constitution 's broad spectrum of interpretations, whether

Courts prove unsuccessful in achieving social change due to the constraints on the court’s power. Rosenburg’s assessment that courts are “an institution that is structurally challenged” demonstrates the Constrained Court view. In this view, the Court’s lack of judicial independence, inability to implement policies, and the limited nature of constitutional rights inhibit courts from producing real social reform. For activists to bring a claim to court, they must frame their goal as a right guaranteed by the constitution, leading to the courts hearing less cases (Rosenburg 11). The nature of the three branches also creates a system of checks and balances in which Congress or the executive branch can reverse a controversial decision, rendering the Court’s impact void.

The Leonore Annenberg Institute for Civics video titled “Key Constitutional Concepts” explores the history of the creation of the United States Constitution in addition to key concepts crucial to the document. Two central themes explored in the video include the protection of personal rights and importance of checks and balances. The video strives to explain these concepts through Supreme Court cases Gideon v. Wainwright and Youngstown v. Sawyer. To begin, the video retraces the steps leading up to the Constitutional Convention in Virginia in 1787. It opens by explaining the conflict that led to the Revolutionary War and the fragility of the new nation.

One of Gopniks main point states that the Bill of Rights emphasizes process and procedure rather than principle. What this means is that a criminal can abuse his rights for his own protection. For example Gopnik quotes Stuntz by saying that a criminal can get off a charge simply because the officer who made the arrest didn 't have a proper warrant. This proves the basis of the Bill of Rights following the one track minded belief that process and procedure is the only way to properly operate a system. Both Stuntz and Gopnik believe that the Bill of Rights could be the cause of the unstable justice system that plagues our communities today.

Through these two pieces of evidence we are able to see that the Constitution does favor individual rights by its limiting of the Federal Government’s power and its securing of individual