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Constitutional Law: Powers Natural Rights Natural rights are the rights that are inherent in the nature of the world. Natural rights dont depend on human beliefs or actions as they follow from the nature of the world and the nature of man. For example, the man has a natural right to defend himself and to protect his property. The Constitution was written by people who assumed the existence of natural inherent rights. It can be illustrated by the following passage from the Constitution, namely the 9 th Amendment, which claims: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. Separation of Powers Separation of Powers is based on political philosophy of Montesquieu.
Baron Montesquieu developed an ideal Constitution that originated from his identification of English Constitution (18 th century). Montesquieu didnt use the exact term separation of powers but defined general concepts of it. He said: There would be an end of every thing were the same man, or the same body, whether of the nobles or of the people to exercise those three powers that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals (The traditional theory about separation of powers n. p. ). According to him, political power should be divided into three parts a judiciary, a legislature and an executive power. Separation of Powers is an integral part of any constitution.
For example, French Declaration of the Rights of Man and Citizen (1789), namely Article 16, claims that Any society in which rights are not guaranteed, or in which the separation of powers is not defined, has no constitution. The Common Law The Common Law traditionally developed from an adversarial English system. According to it, the judicial decisions were based on the following postulates: custom, tradition and precedent. The American federal government, for example, uses a variant of common law system, where the courts do not act as an independent source of common law, but act as interpreters of the Constitution and statutes.
In contrast to the common law, civil law system is based on prescribed texts and postulates. Marbury v. Madison William Marbury v. James Madison, Secretary of State of the United States Case was the landmark case in American law.
It is often explored as the basis for the exercise of judicial review of federal Statutes by the United States Supreme Court as a constitutional power (Wikipedia n. p. ). According to Marshall, the Acts of Congress that are in conflict with the American Constitution cannot be considered the law and the courts are bound instead to follow the Constitution, affirming the principle of judicial review (Wikipedia n. p. ). At the same time, Marbury v. Madison's decision is generally assumed to be a narrowly based as it declared a power which Congress sought to grant to the Court itself (Wikipedia n.
p. ) to be unconstitutional and it conflicted with the Article III of the U. S. Constitution. Baker v. Carr Baker v.
Carr case is also the landmark case in American law. According to Wikipedia Website, the case finally retreated from its political question doctrine to decide that reapportionment issues (attempts to change the way voting districts are delineated) present justiciable questions, thus enabling federal courts to intervene in and to decide reapportionment cases (Wikipedia n. p. ). I - Two key elements of the Chief Justice Marshall's assertion of the power of judicial review in Marbury v. Madison are his understanding of the nature of the Constitution and his understanding of the nature of judicial power. Describe his view of these two things, and explain how he uses them in his analysis upholding the Court's power to declare laws void There are two main elements of the Chief Justice Marshall's assertion of the power of judicial review in Marbury v.
Madison case. They are as follows: Marshall's understanding of the Constitution and his understanding of the nature of judicial power. Lets examine both of them thoroughly. During the Court examination, Mr Chief Justice Marshall assumes that the following questions have been considered and decided: Has the applicant a right to the commission he demands? If he has a right, and that right has been violated, do the laws of his country afford him a remedy? If they do afford him a remedy, is it a mandamus issuing from this court? (FindLaw Website n.
p. ) According to Marshall, the applicants right to the commission he demands originates in a Congress act (February 1801) that concerns Columbia district [ 5 U. S. 137, 155 ]. Marshall proposes to inquire whether the applicant has been appointed to the office, as in case the answer is positive, the applicant is entitled to the commission as the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property (FindLaw Website n. p. ).
Further, Marshall refers to the second article of Constitution that declares: president shall nominate, and, by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for (FindLaw Website n. p. ) and emphasizes on the third section that claims that he shall commission all the officers of the United States. Marshall refers to other clauses of Constitutions that influence the case. These clauses seem to contemplate three distinct operations: the nomination, [] the appointment [ 5 U. S. 137, 156 ], [] the commission (FindLaw Website n. p. ).
According to Marshall, the appointment and commission cannot be considered as one and the same as the power to perform them is defined in two separate clauses of the Constitution. In result of explanations concerning the commission and the laws, Marshall comes to conclusion that the applicant had a right [for commission] and that right has been violated. He further dwells on the potential remedy that can be offered by the laws of his country [ 5 U. S. 137, 163 ]. Marshall claims that by the constitution of the United States, the president is invested with certain important political powers, in the [ 5 U. S. 137, 166 ] exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience (FindLaw Website n.
p. ). As far as the president is authorized to appoint the officers who will aid his to perform the duties, the officers acts are his acts as he bears responsibility for their actions. Marshall proves that the applicant had a consequent right to the commission and that right was violated. Further Marshall proposes to answer the question whether the law of the country should afford an applicant a legal remedy. He claims: The government of the United States has been emphatically termed a government of laws and not of men.
It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right (FindLaw Website n. p. ). Marshall examines the Judiciary Act of 1789 and finds out that the Judiciary Act tends to provide the Supreme Court with original jurisdiction over writs of mandamus. Further Marshall examines the Article III of the Constitution. This Article concerns the Supreme Courts original and appellate jurisdictions. Marshall claims that the Congress has no power to make changes or modify the Supreme Courts original jurisdiction and, therefore the Judiciary Act and the Constitution conflict.
Finally, Marshall makes conclusion that the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument (FindLaw Website n. p. ). II - What does it mean to say that the Supreme Court is a common-law court? And how does that view of the court inform our understanding of the process by which it decides the meaning of the Constitution?
To answer this question we need to examine several general concepts related to the U. S. Supreme Court and the definition of the Common Law. The U.
S. Supreme Court is a federal court that functions as a court of last resort whose rulings cannot be challenged (Wikipedia n. p. ). Each American state has its own Supreme Court (although it is not always called the supreme). For example, in the Commonwealth of Massachusetts the highest court is called the Supreme Judicial Court, whereas in the District of Columbia and in New York, Maryland, the Supreme Court is called the Court of Appeals.
Despite of such variety in titles and names, The U. S. Supreme Court adheres to the system of common law that interprets that jurisdictions constitution. The Supreme Court has powers of judicial review given to itself as decided in Marbury v. Madison (1803), though it appears to have been contemplated by Alexander Hamilton in Federalist No. 78 (Wikipedia n. p. ).
The court acts as an interpreter of the statutes and Constitution of the United States. As far as we have already noted, the general principle of Common Law is based on custom, tradition and precedent. It means that the grounds for judicial decisions are generally found in precedents resulted from past decisions. The U. S. Supreme Court also uses the trials by jury.
Finally, it is guided by the doctrine of the supremacy of the law that argues that the actions of governmental agencies and authorities are subject to ordinary legal proceedings. The American Constitution is the supreme law of the U. S. The Article Three of the U. S. Constitution defines the judicial branch of American court system.
According to it, there should be one court called the Supreme Court: The 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. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office Although the Congress has right to create lower courts, all those courts (the courts orders, decisions and judgments) can be reviewable by the American Supreme Court. Finally, the Article Three of the U. S. Constitution requires trials by jury (and trials by jury are the integral component of the common-law system). The right of trials by jury is also granted by the Seventh Amendment of the American Constitution only in judicial cases that traditionally would have been examined by the courts at Common Law.
In such a way, we can see that the American Supreme Court is the common-law court and, the relationship between the Supreme Court and Constitution is evident. Bibliography FindLaw Website. Marbury v. Madison. Retrieved September 21, 2006. web The Traditional Theory About Separation of Powers.
Retrieved September 21, 2006. web Wikipedia Website. Baker v. Carr. Retrieved September 21, 2006. web Baker.
Carr Wikipedia Website. Marbury v. Madison. Retrieved September 21, 2006. web Wikipedia Website. Supreme Court.
Retrieved September 21, 2006. web
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