100 words agree or disagree to each question Question 1. There are some matters wherein it seems as if the power exercised by the Supreme Court is either too little or too much. I do not think it is a

100 words agree or disagree to each question

Question 1.

There are some matters wherein it seems as if the power exercised by the Supreme Court is either too little or too much. I do not think it is a problem for the Court to have the power that they do, however, there are some rulings that I personally do not agree with.

As we have already ascertained Judicial Review is the Supreme Court’s ability to declare a Legislative or Executive act in violation of the Constitution.[1] This doctrine established in the  Marbury v. Madison (1803)[2] case that paved the way for the Supreme Court to exercise authority over federal legislation. The two provisions to this power are found in Article III[3] and Article VI[4] of the Constitution. Since the Constitution is supreme,  the Supreme Court then decides whether or not legislation is Constitutional and makes decisions on cases concerning the Constitution.

The intent of the framers was to ensure that the power of judicial review was transparent and somewhat separate from the structure of government. It is also possible that the framers did not think that the issue would ever arise since Congress would never pass legislation outside of its enumerated powers.

Obergefell v. Hodges, 576 U.S.(2015)

 Synopsis: Obergefell v. Hodges, 576 U.S.(2015)[5] , a group of same-sex couples who had initially sued their respective states, namely Ohio, Michigan, Kentucky, and Tennessee. Their purpose was to challenge the states bans on same-sex marriage and refusal in recognizing the legality of same-sex marriages which took place in jurisdictions that provided for such marriages. The Supreme Court held “that theses states’ statutes violated the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment”  and under the Civil Rights Act.[6]

Did the Supreme overuse its power in this case? The Supreme Court held that states bands prohibiting same- sex marriages were to be struck down. It also stated that because of equality in the eyes of the law the constitution grants them that right. The right to same-sex marriage was read into the Constitution, with the Court playing social policy maker instead of judge.  This was an issue to be resolved by the states. Instead, the Supreme Court chose to make rather broad claims regarding social policy and created a right to same-sex marriage under the Constitution.

[1] About the Supreme Court | United States Courts. https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about t

[2] Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1803 U.S. LEXIS 352, 1 Cranch 137 (Supreme Court of the United States February 24, 1803, Decided ). Retrieved from https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:3S4X-KWW0-003B-H16C-00000-00&context=1516831.

[3] U.S. Constitution Article III: Section 2;  https://www.law.cornell.edu/constitution/articleiii The judicial power shall extend to all cases, in law and equity, arising under this Constitution

[4] U.S. Constitution Article VI;  https://www.law.cornell.edu/constitution/articlevi This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;

[5] Obergefell v. Hodges, 135 S. Ct. 2584, 192 L. Ed. 2d 609, 2015 U.S. LEXIS 4250, 83 U.S.L.W. 4592, 99 Empl. Prac. Dec. (CCH) P45,341, 115 A.F.T.R.2d (RIA) 2015-2309, 25 Fla. L. Weekly Fed. S 472 (Supreme Court of the United States June 26, 2015, Decided). Retrieved from https://advance.lexis.com/api/document?collection=cases&id=urn:contentItem:5G9F-J651-F04K-F077-00000-00&context=1516831.

[6] Amendment XIV, Section 1: Equal Protection. https://www.heritage.org/constitution/?_escaped_fragment_=/amendments/14/essays/171/equal-protection

Question 2.

I do not think that it?s a problem for the Supreme Court to have the powers of judicial review this is on account of it being the highest judicial body in the land. Also, there would be a new problem if the Supreme Court did not have Judicial Review powers one being there would be no other body left to stop unconstitutional laws from being implemented. Hence it makes sense that the Court has this power especially considering that judicial powers are derived from the logic of the constitution (Kautz, Kautz, Melzer, Weinberger, & Zinman, 2011). Although there is a risk that this makes the court even more paramount than the legislature which might not be what the framers intended, the fact that the Supreme Court refers to the constitution makes it okay. This is because, in the modern age where there is lobbying among other factors in the legislature, the people need more protection than perhaps the framers of the constitution anticipated. Thus, the Judicial Review by the Supreme Court facilitates a channel where new laws can be fact-checked to the constitution and right of citizens can be protected.Although origins of Judicial Review are not found in the constitution, it’s inferred in the text. Furthermore, the Supreme Court initially depended on the 1789 Judiciary Act which mandated it to give specific orders that compelled government officials to act in accordance with the law (Administrative Office of the U.S. Courts , 2019). Subsequently, in Marbury V. Madison the Court faced a case which raised a question whether the legislature or it represented the supreme law on the land. The court rationalized that since the constitution represented the supreme law as per Article IV, and that Congress Acts that were not in accordance could not stand. Hence, it noted and established that in it had a duty to strike down any laws that violated the constitution just as asserted by the 1789 Act (Administrative Office of the U.S. Courts, 2019). According to Kautz, Kautz, Melzer, Weinberger, & Zinman, (2011), the framers might not have intended for judicial review, however, the logic is inferred in the text of the constitution.As anticipated, the powers of judicial review have in modern times been able to protect the citizens. It?s important to recall that framers intended to ensure that liberty of the masses was preserved by the constitution. Throughout history, people have become more conscious of their rights and have relied on the constitution to protect them. However, this would not be possible especially where a minority whose personal practices are not in line with the views of the majority are concerned. For instance, in Obergeffell V. Hodges same-sex couples demanded that their rights to marriage be respected, their demands were denied in the district courts. However, the Supreme Court found that marriage was a right for all persons as indicated in the fourteenth amendment (Obergefell v. Hodges, 2018). In this case, the judicial review facilitated justice for a minority demography despite traditions and majority perceptions indicating dislike. In this instance, the power of judicial review illustrates how it makes the constitution more dynamic to changing circumstances in the modern world.

ReferencesAdministrative Office of the U.S. Courts. (2019). About the Supreme Court. Retrieved from United States Court: https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about

Kautz, S., Kautz, S., Melzer, A., Weinberger, J., & Zinman, R. (2011). The Supreme Court and the Idea of Constitutionalism. Pennsylvania: University of Pennsylvania Press.

Obergefell v. Hodges. (2018, November). Obergefell v. Hodges. Retrieved from Legal Dictionary: https://legaldictionary.net/obergefell-v-hodges/

Question 3.

During this week’s reading we reviewed Articles of the U.S. Constitution. Article III of the Constitution establishes and empowers the judicial branch of the government. The judicial branch is the system of courts that look at the law and apply it to different cases. In the United States, the judicial branch of the government includes the United States Supreme Court and all the lower court that are created by Congress. Article III, Section I states that “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.”

Although not in the constitution, allowing courts to have this power allows for there to be a democracy in our country. Judicial review of the government was established in the landmark decision of Marbury v. Madison. There have been multiple cases in which the Court used the power of judicial review to declare acts by federal/state government were voided because it contradicted one of the constitutional provisions. After analyzing the tenth amendment in which Cornell Law School (n.d)., defines it has the concept of federalism, in which any power that is not given to the federal government is given to the people or the states. This created the establishment and division of power between the Federal government and state government. The Framers did not necessarily express the intent to give the courts such power, but similar to what Linder (n.d) stated in his article, through the use of judicial power there was a clear structure of government. The third possibility could also be contemplated in which the framers did not foresee this issue to ever come up because Congress would have never passed legislation outside of its powers.

In the case of Obergefell v. Hodges, same sex couples sued their respective state challenging the constitutionality of those states ‘ban on same sex marriages or refusal to recognize legal same sex marriages. Section 1 of the 14thAmendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (NCC, n.d.). In this case the court did exercise judicial review effectively. Among all the court cases that were presented, the individuals that were suing had a situation that needed a sense of urgency for the court to give them their right in their state. The courts examined the nature of fundamental rights, the harm or new laws being requested by the individuals, and each individual case. The judicial review that was conducted to determine if law/decisions by the legislative/executive branches or any courts of the state is constitutional. After the court conducted the review and sided with the plaintiffs, same sex marriages were allowed to be recognized, allowed to marry and here I am today in the military with my wife. 

I do believe it was proper execution of power because there was no new law that was being requested. It was a request that was already in the constitution but was thought to be gender specific. There is no harm being done to anyone, rather allowing legalities for ourselves as citizen in our country. If I was diagnosed with cancer and I had children, my wife now could handle that she would need to thereafter.

References:

Cornell Law School. Legal Information Institute. (n.d). Tenth Amendment. Retrieved from https://www.law.cornell.edu/constitution/tenth_amendment.

Linder, D. (n.d.). Exploring Constitutional Conflicts. Retrieved from http://law2.umkc.edu/faculty/projects/ftrials/conlaw/judicialrev.htm

National Constitution Center (n.d.) The 14thAmendment of the U.S. Constitution. Retrieved from https://constitutioncenter.org/interactiveconstitution/amdendment/amdendment-xiv

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