The Constitution provides that federal judges, including judges of the Supreme Court of the United States, are appointed by the President "by and with the advice and consent of the Senate." In 1803, the power of Judicial Review in the U.S. Supreme Court was established with the case Marbury v. Madison. This power, which was later extended to all federal courts, authorized the federal judiciary to review laws enacted by Congress and the president and to invalidate those that violate the Constitution. In these three formal documents, the main characteristics of the Judiciary are developed. The constitution drafted in 1787 was the will of the people of America. Thus the constitution represents the people themselves. The US constitution aimed to make the Legislature the most powerful branch of government. Furthermore, the People did not want a weak executive but the constitution gave very few powers to this branch. The Judiciary, on the other hand, had been considered as a weak power. In what way is Judiciary guaranteed by the constitution, and can also be its guardian?
[...] There were an evolution is the ideas around this topic. It becomes more and more confuse to decide which norm should prevail, while in 1788, it seemed clear that it was the constitution, whatever law is passed. the latter part be true, then written constitutions are absurd attempts”. If legislation prevails, so having a written constitution would be useless. In a period when the US constitution is yet recent, it is not of the public opinion to think that it was useless to write a constitution sixteen years before. [...]
[...] The Judiciary, on the other hand, had been considered as a weak power. In what way Judiciary, guaranteed by the constitution, can also be its guardian? In a first part, one may say that the judiciary power is defined and guaranteed by the US Constitution; that lead to a wise branch, even if it remains a weak power until the principle of Judicial review. Then, in a second part one may say that the Judges are the guardians of the constitution itself; that created the supremacy of the Judiciary. [...]
[...] He argued that constitution ought to be preferred to the statute, the intention of the people to the intention of their agents”. Hamilton saw in the Constitution, the intention of the American people. He thought that the people should prevail over the legislative body. At that time, it was clear that the constitution prevails over acts of Parliament. According to him the judiciary was superior to the legislature. He said that is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void”. [...]
[...] The principle of judicial review is introduced in 1803 by the Marbury v. Madison case. Critics of the Constitution claimed that judicial review gave the judiciary power superior to that of the legislative branch. Hamilton responded to them in Federalist, no by arguing that both branches are inferior to the power of the people and that the judiciary's role is to ensure that the legislature remains a "servant" of the Constitution and the people who created it, not a "master". [...]
[...] This is the very essence of judicial duty”. It shows the supremacy of the judiciary, because at the end of the day, it is up to the judges to decide whether the constitution or the parliamentary law they should apply. At the end of the document, cases are related in order to show that the judges should make their choice in function of the case they are judging. In some cases, applying the constitution should be absurd, and in some others, applying the law repugnant to the constitution should be absurd. [...]
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