JUS 635 Topic 1 Discussion 1

Judicial review is the ability of a country’s courts to evaluate the activities of the legislative, executive, and administrative branches of government to see if they are in accordance with the constitution. Inconsistent actions are ruled unconstitutional and, as a result, null and invalid. In this sense, the existence of a written constitution is required for the institution of judicial review.

Because there is a long tradition of judicial review of administrative agency actions that does not require either that courts have the power to declare those actions unconstitutional or that the country have a written constitution, the term judicial review could be more accurately described as “constitutional review.” The claimed problematic activities of administrators are assessed against norms of rationality and abuse of authority in this type of “administrative review.” When courts utilise judicial review to assess if challenged administrative acts are irrational or entail abuses of discretion, those actions are ruled null and invalid, as are activities that are deemed to be inconsistent with constitutional requirements.

The United States provided the first instances of written constitutions. In addition, the United States provided the globe with an institution that has evolved into…

Whether or not a court has the authority to declare government actions unlawful, it can achieve the same result through “indirect” judicial review. In such situations, the court declares that a challenged rule or conduct could not have been intended by the legislature because it contradicts other laws or well-established legal principles.

The declaration by John Marshall, fourth chief justice of the United States (1801-35), in Marbury v. Madison (1803), that the Supreme Court of the United States had the ability to reject laws enacted by Congress is often regarded as the beginning of constitutional judicial review. There was no stated basis for Marshall’s assertion of judicial review power in the actual language of the United States Constitution; its success was ultimately dependent on the Supreme Court’s own ruling, as well as the lack of effective political challenge.

There are numerous types of constitutional judicial review. In countries that follow the United States’ lead (e.g., Kenya and New Zealand), judicial review can be used only in specific cases or controversies, and only after the fact—that is, only laws in effect or actions that have already occurred can be declared unconstitutional, and only when they involve a specific dispute between litigants. In France, judicial review must take place in the abstract (that is, without a specific case or issue) and before to publication (i.e., before a challenged law has taken effect). In certain nations (for example, Austria, Germany, South Korea, and Spain), courts can only undertake judicial review after a law has been effective, but they can do so in the abstract or in specific situations. The extent to which courts can undertake constitutional judicial review also varies between systems. In the United States, for example, all courts have the authority to consider constitutional issues, but in certain nations (for example, France, Germany, New Zealand, and South Africa), only specialist constitutional courts can hear such claims.

After World War II, a number of constitutions produced in Europe and Asia included judicial review in various forms. For example, in France, where the Cour de Cassation (the highest court of criminal and civil appeal) lacks judicial review power, a mixed-judicial-legislative constitutional council (Conseil Constitutionnel) was established; Germany, Italy, and South Korea established special constitutional courts; and India, Japan, and Pakistan established supreme courts to exercise judicial review in the country.

The ultimate law of the land is the United States Constitution. It defines the federal government’s fundamental framework and ensures that people of the United States have certain rights. This section provides a quick summary of the United States government and highlights some of the Constitution’s “greatest hits.”

The federal government of the United States is divided into three parts: the legislative, executive, and judicial branches. Each branch performs a distinct purpose. The first three articles of the Constitution outline the powers of each branch. Checks and balances are in place to keep each of the three branches from wielding so much power that the other branches are unable to fulfil their constitutional obligations.

The legislative arm of the US government is responsible for enacting federal legislation. The Senate and the House of Representatives are two independent legislative bodies that make up the legislative branch.

The Constitution establishes the precise legislative functions of each, as well as the qualifications for becoming a Representative or Senator.

The executive branch’s job is to carry out the laws enacted by the legislative branch. The President, who chooses a Cabinet of presidential advisors who must be confirmed by the Senate, is part of the executive branch. Each Cabinet member is in charge of one of the executive branch’s departments. Each department is in charge of a particular policy area. Agriculture and food production concerns, for example, would be addressed by the Secretary of Agriculture, who is in charge of the Department of Agriculture.

The judicial branch is in charge of interpreting laws and determining whether or not they are unlawful. The Supreme Court of the United States and other federal courts make up the judicial branch. The Supreme Court has nine justices

The First Amendment to the Constitution protects most types of speech and expression. However, the Supreme Court has carved out limits to free speech and expression, holding that some forms of communication are entitled to limited, if any, constitutional protection.

The following are examples of unprotected speech and expression:

• Obscenity: Obscenity refers to sexually explicit speech and expression. Speech or expression must “appeal to the prurient interest in sex,” be obviously offensive by community norms, and lack “serious literary, artistic, political, or scientific significance” by national standards in order to be declared obscene. Miller v. California, 413 U.S. 15 (1973).

• Incitement and Fighting Words: The Constitution does not protect speech or expression that encourages violent action or unlawful activities.

• Defamation: Libel (a defamatory statement written) and slander (a defamatory statement spoken) are not protected by the First Amendment.

• Symbolic Acts: If a symbolic act is otherwise prohibited, it will not be protected by the First Amendment.

Speech and expression that is ordinarily protected can, to some extent, be controlled by legislation. Regulations controlling the time, place, and manner of speech and expression are legal if they are applied regardless of the substance of the speech or expression.

A permit or other official authorization is usually not required to exercise one’s right to free speech and expression. Marches or parades that impede traffic or are not restricted to a sidewalk, big gatherings necessitating the use of amplified sound, and large gatherings at certain places, such as on government land, are all exceptions to this regulation.

The government cannot deprive anyone of their life, liberty, or property without “due process of law,” according to the Constitution. “Procedural Due Process” and “Substantive Due Process” are the two types of due process.

Due Process Procedural Procedural Due Process analyses how the government takes action to deprive someone of their life, liberty, or property, and whether or not such action is fair. Procedural Due Process ensures that an individual can use whatever procedures are available to ensure that the government behaves fairly when it comes to the individual’s rights. Procedural Due Process demands, at the very least, that an individual be notified of the government’s intention to limit an interest and be given a chance to be heard. For example, before terminating a person’s parole, the government is required by law to complete specific procedures. Due Process in Practice

The purpose of substantive Due Process requirements is to prevent the government from enacting laws that limit an individual’s basic liberties. The Supreme Court has interpreted these essential freedoms to encompass freedom of expression, religion, and the right to make personal decisions about abortion, contraception, and family life over the years.

Individuals are guaranteed “equal protection of the laws” under the Constitution. Courts evaluate laws or government acts that effectively treat groups of people differently based on race or national origin. Laws that treat people differently depending on their age, gender, or other attributes are subjected to a lesser level of scrutiny.

Research dates back to the dawn of time. If need gave birth to innovation, it also gave birth to discovery. The necessities of the prehistoric man must have driven him to seek not just food, but also knowledge. The approach was essentially about acquiring knowledge, seeking the truth, and exploring the unknown.

Because the undiscovered region was so large at the time, every discovery must have been a huge thrill1. Legal research is required for a thorough study of legal issues or any other legal subject. As a result, research needs to be undertaken in order to gain a better understanding of the law and any problem that may be fundamental to better and more effective laws related to the region, which may be of social or economic importance2.

“The process of discovering and obtaining information essential to assist legal decision-making” is defined as legal research. Legal research, in its broadest meaning, refers to “every stage of a course of action that begins with a study of the facts of an issue and ends with the application and transmission of the investigation’s findings.” 3

One of the most common reasons law students leave law school with weak or nonexistent research abilities is because they started law school having them. We are not assisting students in improving or acquiring these abilities when we educate in the old paradigm. Traditional research tools such as a card catalogue or the Reader’s Guide to Periodical Literature have not been presented to entering law students, and so lack them as a backdrop for studying legal research utilising specialised print sources in the legal profession.

Reference

Wechsler, H. (1959). Toward neutral principles of constitutional law. Harvard Law Review, 1-35.