In your reading from week 2 you read, “The Supreme Court in the American System of Government”.
Here’s the link containing the reading: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/supremecourtintro.html
On this webpage you read an excerpt by Retired Chief Justice Charles Evans Hughes on the role of the Supreme Court. Based on this and all of your other readings thus far in this course, please answer the following questions.
1. What is the role of the Supreme Court?
2. What is meant by “Judicial Review”?
3. Explain the two theories of constitutional interpretation, the “living constitution” and “originalist”. Which theory do you believe is the correct theory to follow?
Use bluebook citation, not APA or MLA. Here’s the link to guide you: http://www.suffolk.edu/law/library/19543.php
The Supreme Court in the American System of Government
The highest court in the United States of America is the Supreme Court, which was created in accordance with the Judiciary Act of 1789. It is made up of nine individuals: eight associate justices and the Chief Justice. Being the highest Court in the U.S., the Supreme Court is the final court of appeal. It plays the role of ensuring that all Americans are treated equally under the rule of law and interpreting the Constitution.
Moreover, the Supreme Court has the power to evaluate the actions of both the legislative and the executive arms of the government, through a process known as the judicial review, to ensure that they do not operate in conflict with the Constitution. According to Alexander Hamilton, the judicial review ensures that the will of the legislature comes second after the will of the people and not the other way round as depicted in the Constitution. James Madison, on the other hand, believes that judicial review is a critical function as it ensures that independent judges, rather than the public political bargaining, are the ones that interpret the Constitution.
There are two theories that define how the Constitution may be interpreted. The living constitution, also known as loose constructionism, is a theory that suggests that the Constitution is a dynamic document in the sense that it changes over time (Frost & Reva, 2006). The second theory, originalism, posits that the Constitution is fixed and that any interpretation made of the Constitution should not be changed or altered so as to preserve the court system in terms of authority. I believe that the living constitution theory is the best theoretical approach to use in the analysis of the constitution because it takes into account the fact that society is constantly changing.
The Supreme Court in the American System of Government, Exploring Constitutional Conflicts.
Frost Robert C. F & Reva B. Siegel, Originalism as a Political Practice: The Right’s Living Constitution, 45 Faculty Scholarship Series 541–574, 541-574 (2006), living constitution vs. originalism.