Jconstitutional law Essay Example | Topics and Well Written Essays - 2000 words

Jconstitutional law - Essay Example The concept judicial restraint is based on the Montesque’s idea of ‘division of powers’, which upholds separation of various organs of government for effective governance. For instance, when a judge rules on any case s/he should adhere to the rule of law and must not go beyond the strict interpretation of the law; which will, in result may usurp the power of legislature. Judicial activism is a practice, wherein judges’ personal or political views get more consideration than the existing law in judicial pronouncements. Judicial activism and judicial restraint are inevitable parts of the development of judicial processes in the United States. Thus, here, it becomes necessary for us to see the concrete practices of both judicial restraint and activism in the United States. The essay intends to analyze the development of law in the United States, by critically interrogating the notions of judicial restraint and judicial activism. II. Constitutional Powers of Ju diciary in the United States Framers of American constitution have adopted the idea of separation of powers wherein three wings of the government have equal powers whereas the British model follows the idea of parliamentary supremacy, in which parliament gets more power than other branches of the government; namely, judiciary and executive. Through checks and balances, the American model seeks to prevent all the branches of the government from wielding too much power. Constitutional provisions regarding judiciary have substantially influenced the judicial pronouncements in the country. Section 1 of the Article 3 of the United States’ constitution states that the â€Å"judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish†. Further, Section 2 of the same article elaborates the duties of the courts in the United States. The section notes that the â€Å"judicial Po wer shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.† Above provisions in the US constitution have permitted the Supreme Court to interpret laws and the core features of the constitution. The cases that are presented before the court could well be amenable to judicial activism at the level of Supreme Court wherein the judges could reinterpret the related laws, judgments, and constitutional provisions. 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 (Hall, 2005). 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 j udicial 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 executive are brought under the purview of the Supreme Court. Judicial review, a new weapon in the hand of judiciary in the early nineteenth century, raised many questions around application of judicial rights vis-a-vis the legislative powers. What stand should be taken about judicial review? Should judges try to restrain themselves?