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1. What are the major arguments for and against judicial review?
2. Although the Constitution does not explicitly mention the power of judicial review, it has exercised this power for two hundred years. How has the Supreme Court’s power of judicial review expanded the role of the Court?
3. Judicial review is an American invention. It is the United States’ novel contribution of political theory and the practice of constitutional government. In the most celebrated case in American history, Chief Justice John Marshall declared, “It is emphatically the province and duty of the judicial department to say what the law is.” Why has judicial review continued to be controversial? What are the major arguments advanced for and against judicial review?
4. Alexis de Tocqueville was impressed by Americans’ veneration of the law. He wrote: Scarcely any political question arises…which is not resolved, sooner or later, into a judicial question… . [T]he spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society… * * Alexis de Tocqueville, Democracy in America 1:357-58 (Frances Bowentrans, 1862), 1835 and reprinted in Fred R. Shapiro’s The Oxford Dictionary of Legal Quotations. New York: Oxford University Press, 1993, p. 241.
5. In Federalist 51 Madison insisted that “the necessary partition of power among the several departments laid down in the Constitution” be maintained and that the parts have “the means of keeping each other in their proper places.” Why did Madison believe “partition of power” was necessary? Do you agree or disagree? Why?
6. “A judiciary independent of a king or an executive alone is a good thing, but independence of the will of a nation is a solecism (mistake, error, or blunder), at least in a republican government.”* Do you agree or disagree with this statement? Why? * Thomas Jefferson. Letter to Thomas Ritchie, December 25, 1820. Quoted in The Quotable Founding Fathers. Buckner F Melton, Jr. (Washington, D.C.: Potomac Books, 2004), p. 150.
7. “The Framers intended an independent judiciary but also an accountable one, a separate branch of government, but one embedded in a set of institutions that provided important checks and balances.”* How does the Constitution provide for a judiciary which is at once independent and accountable?* Mann, Thomas E. and Norman J. Ornstein. The Broken Branch. Oxford: Oxford University Press, 2006, p. 41.
8. “Throughout American history courts have played a major role in the development of public policy through the exercise of the power of judicial review.”* What is judicial review and how have the courts used this power to develop public policy? * Jack C. Plano and Milton Greenberg. The American Political Dictionary, 11th ed. (Fort Worth: Harcourt College Publishers, 2005), 290.
** Richard A. Brisbin, Jr. “The Judiciary and the Separation of Powers,” in The Judicial Branch, Kermit Hall and Kevin T. McGuire, eds. (New York: Oxford University Press, 2005), 95.
9. Do courts need the power of judicial review to protect minority interests against legislatures and the executive that reflect the interests of the majority? What evidence can you cite in support of your answer?
10. How and why does the United States Constitution provide for judicial independence on the one hand and for democratic control and accountability on the other?
11. How and why does the United States Constitution provide for judicial independence on the one hand and for democratic control and accountability on the other?
12. The debate about the legitimacy of judicial review is one of the longest-running debates in the history of the United States. What are the major arguments for and against judicial review?
13. “Judicial review, itself a limitation on popular government, is a fundamental part of our constitutional scheme. But to the legislature no less than to [the] courts is committed the guardianship of deeply-cherished liberties.”* In what ways, if any, is judicial review a limitation on popular government? * Felix Frankfurter, Minersville School District v. Gobitis, 310 U.S. 586 (1940).
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