1. The Unique Power of the Judiciary

2. Concept of Judicial Review Background : How is the Court to be structured? Colonial System Constitution vague Judiciary Act of 1789 Transfer of legal authority from states to Federal government 11 th Amendment weakens judiciary

3. MARBURY v. MADISON (1803) Facts of the Case/Decision Significance: 1.Marshall established the courts power to declare acts of Congress and the President unconstitutional if they exceed the powers granted by Constitution 2.The Supreme Court became the “umpire” of the Constitution 3.Chief Justice elevated to status comparable to President and Speaker of the House.

4. Judicial Self-Restraint Judges have different “philosophies” regarding how they should use the latitude they have in interpreting ambiguous provisions of the Constitution. Judicial Self-Restraint: – Defer to laws made by elected officials (Congress): In particular, judges should not substitute their political and personal preferences for those of elected officials. – Also stare decisis (“let the decision stand”) the importance of precedent

5. Judicial Activism Judicial Activism: in general, all judges more or less endorse the norms of self-restraint but “activists” feel less bound by them. – The judiciary is co-equal to other branches, so judges should not be especially deferential. – Judges have special competence in interpreting laws and the Constitution. – Judges should be willing to substitute their constitutional judgments for those of elected officials, especially…. – Judges should be willing to overrule mistaken precedents and adapt their interpretations of the Constitution to changing times.

6. Judicial Self-Restraint vs. Activism Today these conflicting postures are sometimes characterized as – Strict construction / original intent: – “literal meaning” of the words in the Constitution – “intent of the framers” – vs. loose construction / evolving interpretation: The Constitution is a flexible and evolving document whose operational meaning changes as society change This is NOT necessarily a “liberal” vs. “conservative” conflict