Constitutional Law Unit Assessment 1, Fall 2005

Andy Wilson Constitutional Law Unit Assessment 1 September 26, 2005 1. A. Chief Justice John Marshall’s opinion in the case of Marbury v. Madison is an example of an interpretist approach to constitutional interpretation. Marshall interprets the Constitution and expresses his opinion in accordance with his own beliefs as to how it should be executed in regards to policies. In Marshall’s view the Constitution is the Supreme law of the United States and should not be ignored or subordinated by any branch of the government. His approach to interpretation is not one of original intent because he was one of the founders, from reading Marshall’s opinion it is apparent that in his mind it was his duty to interpret the Constitution as he saw fit as long as he was true to the spirit of the document. B. Marshall’s ruling in Marbury did not allow the judiciary to have to significant of a role in the governance of America. In fact it was very necessary that the power of judicial review become a powerful part of the judicial arsenal. This allowed the judiciary to become a more active partner in the development of American policy as well as an equal with the Executive and Legislative branches of government. With the power of judicial review the Judiciary was able to secure its place among the Executive and Legislative branches, in affect improving the government by strengthening the system of checks and balances. C. Some would say that the Judiciary is anti-democratic because it is a small, unelected body without term limits. The Judiciary is not intended to be a democratically elected group because those who are judges are required to have an intimate knowledge of the

Constitution that would be unattainable with the interference of campaigning for a judgeship. The fact that judges are not elected and that they do not have term limits also helps them rise above the pettiness of partisan politics. The lack of campaigning and fear of removal from office allows Supreme Court judge to make decisions that are more in accord with the Constitution and not dictated by the popular opinions of the time. D. The Judiciary is the least dangerous branch of the government because of its passive role. Where the Executive and Legislative branches of government actively dictate actual policy and agendas for society, the Judiciary is passive in its role of declaring things in accord or not in accord with the Constitution. This passive role keeps it from becoming an actual threat to our government because it can not assume the powers of another branch and dictate policy. This is part of the system of checks and balances which is an integral part of our American system and vital to the balance of power within our government. There is also a lack in historical precedent for a fear of usurpation form the judiciary. Historically the greatest threat to a democratic government has come from the military backing of the Executive, a small group in the Legislative or the military itself. E. The role that the Judiciary is currently playing is sufficient in the determination of great policy issues in America. The passive role that the Judiciary plays in its interactions with the other branches is crucial to the balance of power within the government. By increasing the power of the Judiciary, power is taken away from another branch, and diminishing the role of the Judiciary increases the power of the other branches, severely weakening the system of checks and balances. 4. A. In the Case of Bush v. Gore the Supreme Court acted wisely by not becoming involved in a situation that had no justiciability. By deciding to not to hear the case of

Bush v. Gore, the Supreme Court heeded their self-imposed limitations on judicial power. The case was thrown out because it was one of political importance not legal importance, an example of the court yielding to the political question doctrine. Political question doctrine states that the court does not have the jurisdiction over any case that can be settled in a political means. By exercising the political question doctrine, the court yielded to justiciability. B. Justiciability is a group of self-imposed restraints that the Supreme Court imposes on itself in order to limit their own powers as well as limit the number of cases that they try. These limitations are advisory opinions, mootness, standing, ripeness and political question doctrine. Advisory opinions are a denial by the court to give advice on hypothetical situations; a case must be real in order for the court to rule on it. If a case has no significant impact on the litigants it is dismissed on basis of mootness. A case can also be dismissed because of standing, whether the litigant is proper party to bring the lawsuit, ripeness, a case must be at a certain stage of maturity before it can be engaged, and political doctrine, mentioned in part A. C. The exercise of restraint is justifiable when constitutional clarification is needed because by exercising justiciability the court is ensuring the system of checks and balances. Justiciability also lowers the number of cases that a justice has to hear as well as ensuring that the cases that a judge hears are relevant. 5. A. The Committee on Constitutional reform is a group of economic, social and political elites who are interested in making drastic changes to the Constitution. Their main focus is making government more efficient by eliminating many aspects of the Constitution that they see as causing wasteful loses of time and money. Some of the

items that they push for are bonus seats in the House and Senate, two term limit for the President would be repealed and members of Congress would be able to fill cabinet positions in the Executive branch. The members of the Committee on Constitutional Reform believe that the Constitution is in a deep crisis and that these proposals and others are a way to amend our current Constitutional problems. But by enacting many of these acts our government would be made more efficient but at the same time our government would be more susceptible to the whims of a majority by eliminating much of the constructive conflict that occurs between the two political parties. These changes would also diminish the separation of powers between the Executive and Legislative branches leading to combined Executive/Legislative with a far wider scope of powers. The expansion and combing of these powers creates a situation that would be ripe for a more totalitarian seizure of power. B. The proposal of the Committee on Constitutional Reform with the most merit would be that of a national referendum. A national referendum would allow the people of the United States to more directly express their feelings on certain policies. This would encourage Americans to become more involved in government by eliminating the current feeling of disenfranchisement that many Americans feel towards our political system. By giving the American people a direct voice in American politics, they would feel as though they are actually a part of the process and become involved in other parts of the political spectrum as well, such as becoming informed on national issues and voting on all manners of elections. 7. A. If I were the President of the United States and had the opportunity to appoint a justice to the Supreme Court, I would look for a nominee who has the necessary work

experience as well as an intimate understanding of the Constitution. In my opinion partisan politics should not be a factor in the nomination of an applicant. Experience and an understanding of the Constitution would be far more important than political affiliation, considering the fact that most justice’s who were nominated with partisan intentions in mind, in fact very rarely make decisions along party lines but are instead true to the Constitution. B. I would not make a decision based solely on the Walker and Hulbury study on personal characteristics because in choosing a nominee, character, experience and knowledge are far more important than the more superficial and irrelevant facts of the Walker and Hulbury study. Characteristics such as family background, colleges attended and regional characteristics are not truly a determinate of whether or not a justice will be good or bad. It is the character of the judge himself/herself that should be examined and whether or not that person has the desired experience and Constitutional knowledge. C. After having looked at the websites I feel that John Roberts has a very good chance of becoming a justice. He has an excellent work history, plus there is a Republican majority in the Senate which increases his odds of being becoming a justice. Ignoring party politics, I believe that he is more than qualified for the position and that he would be a good contribution to the court. 8. In constitutional interpretation there are two main schools of thought. The first is that of original intent which tries to interpret the Constitution in accordance with what the Founders would have wanted. The one of main problems with original intent is its lack of flexibility. With original intents focus on the past makes it difficult to foresee future ramifications of an issue, for the same reason it is also unable to adapt to situations which

the Founders could not have possibly foreseen. Another problem with Original intent comes down to how do we really know how the Founders wanted the Constitution to be interpreted since they are dead. This lack of direct contact with the Founders leads to a certain degree of interpretation on the part of those who are using original intent in constitutional interpretation. This interpretation of original intent can lead to the contortion of the Founders beliefs in order push ones own agenda. A positive of original intent is that it provides an ideological base from which justices can make decisions. Basing decisions on original intent leaves less room for interpretation which many supporters of original intent see as a plus. The second school is that of interpretist approach, which focuses on interpreting the Constitution along lines that are more contemporary and therefore more relevant to the issue. The interpretist approach allows for more flexibility than that of the original intent, because it takes into account more contemporary solutions concerning an issue instead of looking to the past for help. The interpretist approach is seen as more forward thinking were as the original intent approach is more retrospective. Critics argue that the interpretist approach leaves far too much from open for individual justices to imprint their personal beliefs on an issue. Where original intent has an ideological base to build on, the interpretist approach does not and is in fact subject to the individual justices who are making decisions.