Original Interpretation (Strict Construction) vs. “Living Constitution” 200 words
There are generally two competing views of judicial review: strict constructionism (or originalism) and activism (a/k/a “The Living Constitution”). How does a Justice’s worldview impact upon his/her interpretation of the Constitution? Provide examples.
Flaws in Marbury v. Madison 200 words
Marbury v. Madison is within the top ten of Supreme Court cases because Marshall asserts the right of judicial review and the supremacy of the Constitution over congressional acts. Yet, this case has apparent flaws. What are they and how seriously do they undermine the case?
Checks on the Judiciary 200 words
If, as seems to be the case, impeachment is not a viable check upon the federal judiciary, are there any other checks available, through legislation or otherwise? Are there any checks provided by federalism?
Chapt 3 and Case source: Rossum, Ralph, Alan G. Tarr, and Vincent Muñoz, American Constitutional Law: The Structure of Government. Vol. I, 1tth ed. New York: Routledge.
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Although CJ Charles Evans Hughes argued that the Supreme Court of The United States (SCOTUS) the sole arbiter of the Constitution, such a statement is not completely true. The true part of such an assertion is that the SCOTUS is bequeathed with the sole authority of interpreting the Constitution (Rossum, Tarr, & Munoz 2019). Additionally, the Supreme Court has the mandate of addressing all controversies arising under the US Constitution. The role of the Supreme Court in being the arbiter of the Constitution is seen in how the Court has used its authority to invalidate legislation and executive decisions it considers to be in conflict with the Constitution. However, the other parties that become the arbiter of the constitution are the people of the US. Through the means of judicial review, other Courts ensure that the will of the people as expressed in the Constitution is not trampled upon by the will of the legislature (Rossum, Tarr, & Munoz 2019). The implication, in this case, is that the people have a significant influence in arbitrating matters to do with the Constitution albeit through the Courts. The Supreme Court merely asserts and promotes the will of the people by interpreting the Constitution in a manner consistent with people’s will and not the will of the legislature.
Original Interpretation (Strict Construction) vs. “Living Constitution”
Constitutional interpretation can either be done using the original strict construction approach or interpreting the document as a “living Constitution.” Under strict construction, a judge interprets the text of the Constitution as it is written with due consideration to only what is in the four corners of the Constitution (Rossum, Tarr, & Munoz 2019). However, in interpreting the Constitution, as a living document, the judges assume that the Constitution should evolve and adapt to new issues and circumstances and its interpretation should be dynamic and not static. A judge’s worldviews as interpretivists and conservatists would make him/her prioritize the text and plain language of the Constitution; thus, use a strict construction method. For instance, Justice Black used strict construction in his dissent in Dennis v. United States  by arguing that the sole source of constitutional meaning should be found in the Constitution itself. However, the “living Constitution” judges have a more liberal worldview where they view the Constitution as a living document with the ability to evolve and adapt to new situations. For example Justice Thurgood Marshall, a former Supreme Court Justice argued that the Constitution should be interpreted in light of the existing cultural, moral, and political climate illustrating how his liberal worldview impacts his interpretation of the Constitution.
Flaws in Marbury v. Madison
One of the flaws in Marbury v. Madison is that it excepted the case from the appellate jurisdiction of the Supreme Court meaning that it added such a case to the original jurisdiction of the Court, thus, going against the will of the people who had given specific cases where the Supreme Court had original jurisdiction. Additionally, the case makes the Supreme Court have the power and authority to extend its annulling powers to acts of the legislature. Although the Supreme Court has the authority to interpret the Constitution, it had no authority to add onto or remove any matter from the auspices of the Constitution (Rossum, Tarr, & Munoz 2019). As such, the admission of a case within the Supreme Court’s original jurisdiction without the case being one of those mentioned in the Constitution itself is a serious flaw. The other flaw of the judgment in Marbury v. Madison is that the case short-circuited the essential balance of power between the three arms of the government because it means that the Supreme Court had expanded its scope and its power in contravention of the Constitution (Rossum, Tarr, & Munoz 2019). When the judges granted themselves powers that did not exist in the Constitution, they were basically saying they are more powerful than the other arms of government, which is a fatal flaw in the Marbury v. Madison case. Although the flaws undermine the case, they did not seriously affect the significance of the decision reached.
Checks on the Judiciary
Although impeachment is not a viable option for checking on the judicial branch, one of the checks that exist for the judicial officer includes nomination and confirmation of justices. The federal law requires justices of the Supreme Court to be appointed by the President and confirmed by Congress. In such a scenario, the legislature and executive branch can ensure they check on the qualifications of the judicial officers and determine their suitability. Additionally, Congress can check on the judiciary by passing laws that can limit the power of the courts and their jurisdictions (Rossum, Tarr, & Munoz 2019). Moreover, some of the states in the United States have a partisan election of the judges. For instance, in the state of Alabama, the judges of the Supreme Court and the Court of Appeal as well as the Circuit Courts are elected in partisan elections. During those elections, judges who did not perform well during their term are susceptible to not being reelected to their positions (Rossum, Tarr, & Munoz 2019). Such processes ensure that some checks on the judiciary can be made by the executive, legislature, and the electorate. However, federalism only provides check through presidential nominations of Supreme Court justices and confirmation by Congress.
Rossum, R. A., Tarr, G. A., & Munoz V. P. (2019). American Constitutional Law, Volume I: The Structure of Government. Routledge. ISBN: 9780367233334.