...Constitutionalism has a different meanings and one of them is that ; Constitutionalism refers to a system of government based on a constitution, a government which demonstrates adherence to the principles of the constitution. Constitutionalism can also be defined as a modern concept that desires a political order governed by laws and regulations. Within the concept of constitutionalism is the idea of limited, open, transparent and accountable government which must truly represent the will of the people and not simply smoke-screen the will of the people. Mwansa (2013:10),explains that it is a complex ideas, attitudes and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law. Constitutionalism is there to tame wayward governments that see no limits to their powers or simply ignore such limits in the guise of pursuing a common or greater good. In a state that recognizes the importance of constitutionalism, the leaders are bound to observe both limitations of power and the procedures which are set out in the supreme constitutional law of the community. Constitutionalism ensures that governmental powers are limited beyond theory, and in practice. Constitutionalism goes beyond a good constitution and beyond constitutionality of governmental action or a country’s laws.Constitutionalism is a concept associated with the political theories of John Loce and the founders of the American republic and equated...
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...Founding Fathers outlined main provisions within the US constitution in order to avoid tyranny: the separation of powers, a federal structure of government and also providing citizens inalienable and entrenched rights through the implementation of the Bill of Rights. Arguably, these provisions as a result mostly ensure, as the Founding Fathers had hope to achieve, limited government, in so much as the size and scope of the federal government is limited to an extent in which it is necessary only for the common good of people. The separation of powers prevalent in the USA, whereby political power is distributed between the executive, the legislature and the judiciary branches of government, were adopted from the Founding Fathers by the principles of Montesquieu, who argued for a separation of powers into legislative, executive and judiciary branches in order to avoid tyranny. This framework of government implies not only the independence of government, therefore a separation of personnel (for example, both Hilary Clinton and Barack Obama had to give up their senate seats when becoming Secretary of State and President) but also interdependence of the branches of government. The interdependence of the branches laid out within the constitution arguably, as some may regard,...
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...one of which is a nongovernmental private party. Plaintiff (254) Defendant (254) Federal jurisdiction (255) U.S. district courts (255 – 256) U.S. circuit court of appeals (256) U.S. Supreme Court (256) Original jurisdiction – A defined set of cases that avoids a lower court and goes directly to the supreme court. Appellate jurisdiction (256) Judicial Powers and Limitations (256 – 261) Judicial review –The power of a court to overturn a law or official government action because it is deemed unconstitutional. Marbury v. Madison (257) Judicial restraint (258) Judicial activism –A conception of judicial review that believes courts should overturn laws or government actions even if there is no clear constitutional directive. Standing (260) Precedent – a principle articulated in a previous case that judges use to decide current cases. Judicial selection (261 – 267) Senatorial courtesy – The practice whereby a president consults with senators in his party to find potential lower court vacancies that occur in the senator’s states. Measuring Equality: Presidents’ Records of Minority Judicial Appointments to the Lower Federal Courts (265) Decisionmaking On the Supreme Court (268 – 272) Brief (268) Amicus curiae (friend of the court) briefs – briefs filed by parties that have an interest in the outcome of a case but are not directly involved in it. Oral...
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... Winston Churchill Introduction:- A Constitution Bench led by Cheif Justice Sabharwal brought about the first binding change in the law of privileges in India in Raja Ram Pal V The Hon’ble Speaker, Lok Sabha. The Court held that the Power of Judicial Review under Article 13(2) would extend to the privileges on a case to case basis overruling its earlier decisions. In Raja Ram Pal the Court said: “That the Constitution is the Supreme lex in this Country is beyond the pale of any controversy. All organs of the State derive their authority, jurisdiction and powers from the Constitution and owe allegiance to it. This includes this Court also which represents the judicial organ.' In the instant case the primary question before the court was whether in exercise of the powers, privileges and immunities of the members of the parliament are the Houses of Parliament competent to expel their respective Members from membership of the House. If such a power exists, is it Subject to judicial review and if so, the scope of such judicial review and whether the court has the jurisdiction to try such a case. The aforesaid question have arisen against the allegation that the Members of Parliament (MPs) indulged in unethical and corrupt practices of accepting monetary consideration in relation to their functions as MPs. The decision of the Supreme Court of India in Raja Ram Pal v The Hon’ble...
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...Parliamentary sovereignty, once the dominant principle of the UK Constitution, is now under considerable pressure. Discuss this statement with reference to the UK’s membership of the EU, the devolution acts of 1998, the Human Rights Act 1998 and recent judicial comments on the Rule of Law. "Certainly we want to see Europe more united… but it must be in a way which preserves the different traditions, parliamentary powers, and sense of pride in one's own country." Margaret Thatcher Over the course of the years many prominent figures such as politicians and academic writers have been concerned with the diminishing of Parliamentary sovereignty. “Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.” Historically, due to the lack of a single codified constitution in the UK, the Westminster Parliament is the most powerful and influencing factor on the British political frontier. As opposed to America where the constitution dominates US politics, and legislation can be deemed unconstitutional and revoked by the US judiciary. However, since further integration into Europe incorporating The European Communities Act 1972, The Human Rights Act 1998, European Conventions on Human Rights...
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...Brinks and Gauri define legalization of policy not depending on courts making final all-or-nothing decisions, thereby usurping the functions of more representative institutions, instead, it recognizes the open-ended and interactive nature of judicial decision making, suggests that policy making power is not zero sum across government branches and does not smuggle in normative judgments about the proper province of courts. Argue that courts more often add a relevant actor and relevant considerations than seize decision-making power from other actors Legalization as the participation of legal actors and the use of legal concepts in policymaking processes. Public policy litigation legalization- the extent to which courts and lawyers become relevant actors and the language and categories of law and rights...
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...of the will of the American people. The Supreme Court’s decisions are not supreme over the Constitution. The answers the Supreme Court gives are very important to the stability of the law so necessary for good government. Article VI of the Constitution, says that “The Constitution, and the laws of the United States made in pursuance thereof…shall be the supreme law of the land…” The Constitution created the three branches of government with limited powers to each. The notion of “judicial supremacy” is contrary to the framers’ understanding of the judicial role. The power of judicial review does not imply judicial supremacy. When the Constitution was written, many believed that the Court had no power of “judicial review.” According to the Legal Information Institute, Judicial review is the idea, fundamental to the US system of government, that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judicial branch. Judicial review allows the Supreme Court to take...
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...The constitution can be defined as the supreme law of the United States of America,that establishes rules and distinctive powers of the federal Government. Keith Whittington on his report,How to read the constitution, precisely defines the constitution as “an act of communication, of instruction, from the supreme lawmaker within the American constitutional system to government officials. It conveys their intentions as to what power government officials would have, how that power would be organized, to what legitimate purposes that power could be used, and what limitations there would be on that power”(Whittington,2006). On looking at the constitution written by our founding fathers,it clearly begins by explaining why it was established and the underlying reason of protecting and upholding the fundamental values and interests of the American people.It starts by declaring “We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America”(The constitution,1787). In article one, it talks of the representation of all the states and rotational election of senators(which I think is important in a democratic government) as well as the making of the necessary laws empowering the government in its execution of...
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...Parliament great flexibility to pass all legislation that is needed to meet current problems. However, this flexibility means that our rights are less well protected for example the gun owners in America have had their rights much better served by the codified constitution that they have than the UK gun owners who suddenly found their weapons banned by the law. Therefore, it is argued that Britain should retain uncodified constitution because of its flexibility. Another reason why Britain should also retain uncodified constitution because a codified one would lead to judicial activism. Unelected judges should be kept out of the political arena. It is impossible for judges to not allow their own personal beliefs to shape their decisions. Strengthening the judiciary with a codified constitution would lead to judicial activism where the courts use constitution to promote their own beliefs. However, past cases of judicial review have shown the...
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...Marshall's decision to declare that the Supreme Court could not give out writs of mandamus and thus the Judiciary Act of 1789 (that gave out this power) was unconstitutional set the precedent for the Supreme Court to have the power to declare a law unconstitutional with the principle of judicial review. With this decision, he gave the Judiciary Branch as much power as the other two branches, and also stressed the power of the national government over the states. Without this decision, the states could be the final authority in determining if laws are unconstitutional and federalism would have been minimized. The states would not respect the decisions of the federal government. In this case, William Marbury, a Federalist and a “midnight appointment” of President John Adams, did not receive his commission from the new Secretary of State under Thomas Jefferson, James Madison. Marbury asked the Supreme Court to issue a “writ of mandamus” forcing Madison to deliver his commission. Marshall dismissed suit, but in doing so struck down part of Judiciary Act of 1789 because the Supreme Court had no authority to give Marbury his commission. This was significant because it established the precedent of “judicial review” and that the Supreme Court, not states, had power to declare laws of Congress unconstitutional. Before this case, the Supreme Court had been the weakest of the three branches of government, and the belief was that the states could nullify a law if they did not agree with...
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...Constitutions and shall initiate measures for check and balance purposes towards genuine student leadership and services in all levels of governance under the CSG. It shall adhere to the Atenean principles, values, and Magis for the greater glory of God. Vision The Xavier University – Ateneo de Cagayan Central Student Government – Supreme Constitutional Court envisions a society with law-abiding and God-loving leaders who shall serve the community with prevailing dependability, sincerity, faithfulness, and competency, and whose every action shall be grounded with paramount justice. The SCC further envisions a community of leaders who shall respect the Constitution and would initiate efforts to protect and preserve the Constitution as the basis of the existence of the XU-CSG. About The Supreme Constitutional Court is XU-CSG’s judicial branch. It exercises the judicial powers vested upon it by the 2005 XU-CSG Constitution. Motto “Dura lex sed lex” – The law is harsh but it is the law. Guiding Principle XU-CSG officers including its College Council officers must at all times be accountable to the members, serve them with paramount dependability, honesty, loyalty, and competency, and do all with justice. (Article XII Section 1 of 2005 XU-CSG Constitution) Office StC 207 Canons of Judicial Conduct 1. Independence 2. Integrity 3. Impartiality 4. Propriety 5. Equality 6. Competence and diligence Powers and Responsibilities 1. Responsible for the strict and...
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...Judicial Review: proposals for reform December 2012 Consultation Paper CP25/2012 Consultation start date: 13 December 2012 Consultation close date: 24 January 2013 Judicial Review: proposals for reform Presented to Parliament by the Lord Chancellor and Secretary of State for Justice by Command of Her Majesty December 2012 Cm 8515 £16.00 © Crown copyright 2012 You may re-use this information (excluding logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/ or email: psi@nationalarchives.gsi.gov.uk Where we have identified any third party copyright material you will need to obtain permission from the copyright holders concerned. Any enquiries regarding this publication should be sent to Michael Odulaja, Administrative Justice, Court and Tribunal Fees and Coroner’s Policy Team, Ministry of Justice, Post Point 4.34, 102 Petty France, London, SW1H 9AJ. This publication is available for download at www.official-documents.gov.uk and on our website at www.justice.gov.uk ISBN: 9780101851527 Printed in the UK by The Stationery Office Limited on behalf of the Controller of Her Majesty’s Stationery Office ID 2529331 12/12 Printed on paper containing 75% recycled fibre content minimum. Judicial Review: proposals for reform Contents Foreword 1. Introduction 2. Background 3. The case for change 4. Time limits for bringing a claim...
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...The Separation of Powers How did the Constitution divide power between the legislative, executive, and judicial branches of government? What are the different roles played by each of these branches in American national government? o Separation of powers divides power among the executive, legislative, and judicial branches as distinct departments of American national government. ▪ This endows several different institutions—the Congress, the executive branch, and the judicial branch—with the ability to influence the nation’s agenda and affect decisions. ▪ This also establishes a system of checks and balances in which power is divided to ensure that no one branch becomes predominant. o Within the system of separated powers, the framers provided for legislative supremacy, listing the powers of the national government in Article I of the Constitution, which deals with the Congress. o Presidential government has emerged, particularly after 1937, such that Congress and the president perpetually compete for contrul of the national government, particularly during periods of divided government. o The separation of powers system of checks and balances relies on the goal-seeking behavior of puliticians acting within the various institutions of the national government. Exemplifying the Rationality Principle, the give-and-take between the legislative and executive branches is fueled by the ambitions of the puliticians...
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...The Analysis of Law and Courts in Today’s Business Environment Tabitha Merkow ETH 321 10/13/2014 Laurie Wicker The Analysis of Law and Courts in Today’s Business Environment In today’s business environment there is no exact definition of law. Law is a set of rules, standards and principles that outlines the behavior we practice in business. The legal system is a major institution that assists us in defining acceptable social behavior. Laws limit the activities that are not in the best interest of the public. All people have different values and desire different things in life laws act as a way to dispute resolution. Laws play a role in maintaining honesty and integrity in a social environment. The legal system is a tool used to implement changes in acceptable behavior. Laws and courts have many purposes in today’s business environment for example consumer protection, employee protection, environmental protection, and taxation. The laws government enacts are a way to enforce rules. The government’s role in business is to protect consumers from bad business practices by enforcing rules, regulations and laws that the businesses have to go by if they want to practice business. The government is also responsible for protecting the employees that work for these businesses by making sure they provide a safe work environment and that they are protected against discrimination. The environment has to be protected from...
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...constitutions, namely the Constitutional Law or Science Comparative Comparative Constitutional Law. Interest comparative method was essentially twofold: To compare two or more constitutions of various countries in order to find the basic principles of constitutional law; To compare a constitution that can be studied with another constitution or constitutions of other countries in order to understand more deeply the constitution were examined. In the book Prof. Jimly, he said that m ccording John AlderJohn Alder formulating the scope of constitutional law by asking a few key questions, which are :...
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