An Essay on the Role of the Supreme Court in the Adjudication of Constitutional Rights
Michael A. Berch
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Arizona State Law Journal, p. 283, 1984
Constitutional law, and its American corollary, judicial review, are firmly imbedded in our jurisprudential thinking. Because of recent attempts to establish the illegitimacy of certain court pronouncements and thereby to erode the role of the judiciary, even in the area of human rights and liberties, it behooves us to reexamine the basis upon which judicial review is founded. This undertaking necessitates a reexamination of Marbury v. Madison in light of the controversies surrounding judicial review and accountability. This essay shall examine the modern assaults on the Supreme Court to the effect that it is engaged in noninterpretive judicial review-establishing constitutional law and invalidating political acts of coordinate branches of government and of the states without a firm basis rooted in the text of the Constitution or intent of the framers. Contrary to the popular belief that Marbury embraced a strict construction of the Constitution, this essay will demonstrate that the decision espoused a philosophy of judicial activism neither founded within the four corners of the text nor rooted in demonstrable proof of the intent of the framers. This essay offers justifications for the Court's focus on general principles of justice formulated by modern standards rather than by reference to more limited historical perspectives. Finally, this essay comments upon the role of other departments of the government and of the people in altering the course of badly decided constitutional law principles expounded by the Court.
Number of Pages in PDF File: 22
Keywords: judicial review, judicial activism, constitutional lawAccepted Paper Series
Date posted: May 29, 2009
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