Judicial function in constitutional limitation of governmental power / Frank R. Strong.
Strong identifies two concepts that have evolved for effectuation of limitation: indirect limitations (in which the defining feature is one of checks and balances) and direct limitations (which has its origins in the conviction that there exists a higher law forbidding abuse of mortal power). The Co...
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| Format: | eBook |
| Language: | English |
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Durham, N.C. :
Carolina Academic Press,
℗♭1997.
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| Subjects: |
MARC
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| 245 | 1 | 0 | |a Judicial function in constitutional limitation of governmental power / |c Frank R. Strong. |
| 260 | |a Durham, N.C. : |b Carolina Academic Press, |c ℗♭1997. | ||
| 300 | |a 1 online resource (xi, 178 pages : |b illustrations) | ||
| 336 | |a text |b txt |2 rdacontent. | ||
| 337 | |a computer |b c |2 rdamedia. | ||
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| 500 | |a "Cases considered": pages 173-178. | ||
| 504 | |a Includes bibliographical references. | ||
| 505 | 0 | |a Part First. Originating conceptions -- Evolving theories of limitation -- Indirect limitations -- Direct limitations -- Emerging patterns of judicial function -- The judiciary's designed function of judicial review -- Constitutional limitation without invalidation -- The Misunderstanding of Bayard v. Singleton, NC 1787 -- Insinuation of the undesigned judicial function of Constitutional review Marbury v. Madison 1803 -- John Marshall's reasoning is refuted but prevails -- Part Second. Supreme Court performance in exercise of Constitutional review -- With indirect limitations -- Separation of powers -- Court administration of check and balance has been satisfactory -- Disconnection, as well as merger, can be unconstitutional -- Federalism -- How the Tenth Amendment has been inexcusably eroded -- The Importance of federalism in Constitutional limitation -- Note on the relation between direct and indirect limitations -- Term limits -- How a countermove toward federalism has been stymied -- Evaluation of possibilities remaining for attainment -- With direct limitations -- Note on Judge Hand's concerns and court dismissal -- Establishment clause -- Fallacy and folly in religion clause doctrine -- Justices Brandeis and Holmes provide precedent for dismantlement -- Speech/Press clause -- What purpose for freedom of oral and written communication? -- Self-government as objective: the Court follows the beam -- Self-expression as error: the Court forsakes the beam -- Note on protest as protected speech -- Due process clauses (incorporating absorbed equal protection and the Taking clause) -- Taking liberty -- Power and limitation in crisis: Japanese-American exclusion -- Taking property -- Due process as focal point in takings jurisprudence -- The Rise and demise of Locknerism -- Reaction: substantive due process in disrepute -- Uncertain revival -- Note on current attempts to solve the "puzzle" of takings -- Equal protection clause (and contrived due process) -- Apportionment -- Abortion -- Part Third. The Least [struck through with hyphens] dangerous branch -- Intimations of judicial supremacy -- The Threat of an imperial judiciary intensifies -- Deciphering the surprising appeal of judicialized government -- The issue joined: Constitutional government or government by judiciary -- Reforming the judicial branch by distinguishing functions of review -- Thwarting Constitutional violation by introducing advisory review -- Note on locating the Supreme Constitutional Court in Mid-America. | |
| 520 | |a Strong identifies two concepts that have evolved for effectuation of limitation: indirect limitations (in which the defining feature is one of checks and balances) and direct limitations (which has its origins in the conviction that there exists a higher law forbidding abuse of mortal power). The Constitution of 1787 was saturated with indirect limitations, primarily separation of powers in the new federal government and federalism for divided authority between it and the States. The designed function for the Judiciary was to review this fractionation for distortions of it; friction would indirectly reduce thrusts of arbitrary behavior. Judicial Review involved no authority to determine constitutionality. The Bill of Rights of 1791 introduced several direct limitations, mostly procedural. The major substantive provisions were those of the First Amendment and Due Process of the Fifth. Chief Justice John Marshall asserted that the Supreme Court possessed authority to determine, with finality, all portions of the Constitution. Although effectively refuted, the usurpation prevailed and Constitutional Review has been tolerated. The record of the Court's exercise of this function is poor. Especially with direct substantive limitations there have been inexcusable misrepresentations of major guarantees. Some may be attributed to ignorance of constitutional history, but in this century there is growing evidence of intent to disregard that history as irrelevant for today. Thus arises the threat of an Imperial Judiciary, an arrogant and dangerous affront to the design of the Founders for government by consent of the governed. Strong urges major revisions in the Judicial Branch. He proposes two Supreme Courts - one for Judicial Review, the other for Constitutional Review - in response to the differing functions of review. Jurists of the latter would serve for a term of years and their power to determine constitutionality would be reduced to that of Advisory Review where, by genuine interpretation, the Constitution is silent. Amendment would be only by Article V. | ||
| 650 | 0 | |a Judicial review |z United States. | |
| 650 | 0 | |a Political questions and judicial power |z United States. | |
| 650 | 0 | |a Separation of powers |z United States. | |
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| 650 | 7 | |a Judicial review. |2 fast |0 (OCoLC)fst00984727. | |
| 650 | 7 | |a Political questions and judicial power. |2 fast |0 (OCoLC)fst01069674. | |
| 650 | 7 | |a Separation of powers. |2 fast |0 (OCoLC)fst01112740. | |
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| 776 | 0 | 8 | |i Online version: |a Strong, Frank R. |t Judicial function in constitutional limitation of governmental power. |d Durham, N.C. : Carolina Academic Press, ℗♭1997 |w (OCoLC)606077895. |
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