The Judiciary

Chapter Outline with Keyed-in Resources
I. Introduction
    A. Only in the United States do judges play so large a role in policy-making.
        1. Judicial review: the right of the federal courts to rule on the constitutionality of laws and executive actions
          a) Chief judicial weapon in the checks and balances system
        2. Few other countries have such a power.
          a) In Britain, parliament is the supreme law-maker.
          b) Judicial review, with some notable exceptions, is not determinative in other countries.
    B. Debate is over how the Constitution should be interpreted.
        1. Strict construction: judges are bound by wording of Constitution
        2. Activist: judges should look to underlying principles of Constitution
        3. Not a matter of liberal versus conservative
          a) A judge can be both conservative and activist, or liberal and strict constructionist.
          b) Today: most activists tend to be liberal, most strict constructionists tend to be conservative.
II. The development of the federal courts (THEME A: THE HISTORY OF THE FEDERAL JUDICIARY)
    A. Founders’ view
        1. Most Founders probably expected judicial review but did not expect federal court to play such a large role in policy-making.
        2. Traditional view: judges find and apply existing law
        3. Activist judges would later respond that judges make law.
        4. Traditional view made it easy for Founders to predict courts would be neutral and passive in public affairs.
        5. Hamilton: courts are the least dangerous branch; their authority only limits the legislature
        6. But federal judiciary evolved toward judicial activism, shaped by political, economic, ideological forces of three historical eras.
    B. National supremacy and slavery: 1789–1861
        1. Marbury v. Madison (1803) and McCulloch v. Maryland (1819); see the box on Marbury v. Madison...