Monday, June 9, 2014

The Post Constitutional Era! Part XVI

Article 3 - The Judicial Branch
Section 1 - Judicial Powers


Article III describes the third branch of the government’s separated powers. It explains the structure, function and jurisdiction of the judicial branch.  Supreme Court cases involving the power of the judicial branch include Marbury v. Madison (1803).

This case was the first time that the Supreme Court declared an act of Congress (a section of the Judiciary Act of 1789) to be unconstitutional. This is an exercise of the power of judicial review—the power of the federal courts to interpret laws in light of the Constitution.

Chief Justice John Marshall explained, “[T]he Constitution of the United States confirms and strengthens the principle… that a law repugnant to the Constitution is void.” Furthermore, the Supreme Court is the proper authority to decide if a law is in conflict with the Constitution. He called this responsibility “the very essence of judicial duty.” In the Federalist Papers, Alexander Hamilton discussed “the rights of the courts to pronounce legislative acts void, because contrary to the Constitution.” He explained in Federalist No. 78, “No legislative act, therefore, contrary to the Constitution, can be valid…” Although the Founders, including Hamilton, considered the courts the weakest branch of government, their power to identify and invalidate unconstitutional laws is essential to the preservation of constitutional law. 


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. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Constitutional Topic: Separation of Powers

The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into topics than can be provided on the Glossary Page or in the FAQ pages. This Topic Page concerns the Separation of Powers. The concept of Separation of Powers is embodied in the Constitution in the 1st Article, in the 2nd Article, and in the 3rd Article. Another Topics Page, on The Government provides details about the make-up of the various branches and may also be of use.

Primary sources for this topic page are Comparative Politics by Gregory Mahler (Schenkman Publishing, 1983) and Comparative Politics by Gregory Mahler (Prentice Hall, 2000). Individual pages from Wikipedia and Canada in the Making were also helpful in keeping this page up to date.


The United States Constitution is deliberately inefficient.  The Separation of Powers devised by the framers of the Constitution was designed to do one primary thing: to prevent the majority from ruling with an iron fist. Based on their experience, the framers shied away from giving any branch of the new government too much power. The separation of powers provides a system of shared power known as Checks and Balances.

I would like to recommend reading the Historical Examples.  You also may find information on the issue of a “writ of mandamus” interesting. 

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