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The Power of Judicial - Essay Example

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This paper tackles the power of judicial review presumably granted to the U.S. Supreme Court to see all laws passed in the nation complied with the U.S. Constitution based on its own interpretation.This power serves as a check-and-balance to prevent the government from abusing its powers…
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The Power of Judicial
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"The Power of Judicial"

Download file to see previous pages Judicial review refers to the authority of a court (the Supreme Court or its lower courts) to examine either an executive or legislative act whether it is lawful (constitutional) or not; if not, then the court declares such act as illegal and invalidates the said act as having no legal effect. It is a well-established legal doctrine by practice but it has not been adequately settled as an issue. There are two prevailing opinions on the supposed power of judicial review by the Supreme Court. The first view is that no such explicit powers had been granted or contemplated by the Founding Fathers since nowhere in the Constitution was such powers of judicial review clearly stipulated. The second and opposing view is that the Founding Fathers had intended to grant such powers of review but may have inadvertently omitted it by oversight or by mistake only. Opponents of judicial review cite Section II, Article III of the Constitution as not saying a power to review had been granted since what this section contains is merely a mention of judicial power (but not judicial review powers) while its advocates cite legal precedence in this regard. It had been decided when this issue came up in Marbury v. Madison (1803) when the U.S. Supreme Court for the very first time declared an act of Congress as unconstitutional. This act is declared illegal, hence this implies the power of judicial review by the Supreme Court. However, advocates of judicial review most often cite the article by Alexander Hamilton in the Federalist (Paper No. 78) as the ultimate guide whether the Founding Fathers intended for a judicial review.  ...Download file to see next pagesRead More
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Hamiltons Views on Judicial Power
(Hamilton, Federalist) The statement follows the fundamental American concept of government directly influenced by the French philosopher Montesquieu (1949 [1748]) who asserted that separation of powers is essential to liberty. The intent of the concept of separation of powers is the distribution of governmental powers among the different departments so that the whole power is never concentrated in a single individual or group.
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The Supreme Court acted in an activist manner in the period between 1953 and 1969, and this is in an era when Chief Justice Earl Warren headed the Court. The Warren Court instigated the civil rights onward by suggesting that
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In order to understand and evaluate the role of post 1945 cases, some reference need to be made of earlier cases which have formed the basis of what the law is as it stands in the post Street V. Mountford era. The licence has normally been seen as mere permission to use someone's property and seems to be terminable at will while the lease seems to engulf within its concept various statutory and equitable rights.
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