...interpretations of the Constitution is the supreme law of the land is a very recent contention. There is a distinction between the Constitution and Constitutional law. The Constitution is the fundamental law, while Constitutional law is the body of law that resulted from the Supreme Court. After William Rehnquist and Antonin Scalia were sworn into their new offices, President Reagan closed his speech with a quote by Daniel Webster, “… Hold on to the Constitution of the United States of America and to the Republic for which it stands—what has happened once in 6,000 years may never happen again.” Which deems the constitution a stable document that does not sway as much as Constitutional Law. Hamilton, Jefferson, and all the Founding Fathers recognized that the Constitution is the supreme and ultimate expression 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...
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...describe the organization and structure of the American legal system by defining the roles of the federal and state governments as follows; The role of the federal government, the role of the state government, the shared roles of the federal and state government, the Supremacy Clause, and what happens when there is a direct conflict between federal and state laws. II. Role of the Federal Government Over two hundred years ago, our founders designed the United States to be governed under a system of federalism. The Cornell University Law School defines federalism is a system of government in which the same territory is controlled by two levels of government (2014). Specifically, in the U.S. the two levels of government are the federal or national level, and the individual state level. The creation of this system was deliberate as to eliminate the opportunity for any one person, and or branch of government, from having too much power over the country; consequently undermining the system of democracy as a whole. a. The national level of authority is known as the federal government, and has powers over the nation as a whole. The federal government is given express powers, of specific design, from the constitution itself. However, the branches of the federal government are also afforded the opportunity to interpret those powers in each circumstance that may arise, these are implied powers. Specifically the powers, to mint money, declare war, establish post offices, establish...
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...American Legal System: Federal and State Governments and the Supremacy Clause Sarah Sayegh Professor McElligott 15 January 2015 Unit 3 “We the people of the United States, in Order to form a more perfect Union…” Drafted in Philadelphia in 1787, the United States Constitution has been the founding legal document of our government. One preamble, seven articles and twenty-seven amendments have allowed for our nation to prosper and grow. Following the principles of federalism, the federal government and state governments coexist and make laws within their own designated territories. The organization and structure of the American legal system is based on federalism, which allows our country to be controlled by two levels of government. While the federal government controls military powers, declares war, prints money etc. the state governments are designed to handle less severe but still crucial situations such as, regulating interstate commerce, conduct elections, establish local governments, set up schools etc. Such a strong organized government has created fairness, structure and most importantly freedom as both the federal and state governments work within their means and support each other. The US Constitution divides the federal government into three branches, the legislative branch, executive branch and judicial branch. In doing so, it ensures a government in which no group gains more power then the other. The legislative branch creates the laws in which we abide by...
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...One of the basic principles of the English Constitution is the rule of law. This doctrine is accepted in the US and Indian Constitution. The entire basis of administrative law is the doctrine of the Law. Sir Edward Coke, Chief Justice in James I’s reign, was the originator of this concept. In a battle against the King, he maintained successfully that the King should be under God and the Law, and he established the supremacy of the law against the executive. Dicey developed this theory of Coke in his classic work. The Law and Constitution published in the year 1885. Rule of Law embodies the doctrine of supremacy of law. It is a basic and fundamental necessity for a disciplined and organized community. Rule of Law, said Dicey in 1885, means “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power...
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...The supremacy of the Federal Government, when operating within its constitutional sphere, over all persons and bodies politic within its territorial limits, is no longer opens to question. That the extent of this federal constitutional sphere of action is to be determined in the last resort by the federal Supreme Court is equally well settled. The maintenance of this supremacy unimpaired, while at the same time preserving to the States their proper autonomy and independence of action, has, however, been a difficult task; and, so long as the federal form is retained, this task will continue to tax to the utmost the legal and political abilities of our courts and political bodies. With a quite proper motive those who have controlled the public actions of the States, and those who have guided the activities of the United States, have sought for their respective governments the greatest possible constitutional power and independence, and, therefore, have not hesitated to occupy debatable territory. Thus, without there being any denial of the supremacy of the federal law, when operating within its proper field, or of the right of the federal Supreme Court to determine, in final resort, the extent of that proper field, frequent conflicts have resulted. These conflicts in their many and varied forms furnish much of the material for the present treatise, and they will be severally considered in their logical order. It will not be without value, however, to review in this introductory...
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...the constitution, the principles of federalism are mentioned in various articles. For example article 1 section 8 displays the power available to congress. It contains the ‘elastic clause’ that potentially gives the federal government so much power over the states. And the amendments provide a list of ‘can’t do’s’ for the states. For example states can’t enter into treaties with foreign powers. As the aspects of federalism is displayed in the codified constitution, signifies the importance for the US to collectively follow this system. However, Federalism is a method of government that also allows the states to maintain their sovereignty, without the fear of intervention of the central government, unless they violate or clash with the constitution. This is evident as each state has its own constitution and its own executive, legislature and judiciary all working within the limits set by the national constitution; executive; legislature and judiciary. An example of a state constitution that has relevant articles to its needs is Idaho. For instance in their constitutions article 16, section 1 the constitution talks of the need for the Idaho legislature to pass laws that protect livestock from disease. The federalism structure helps create an adaptive US state as laws concerning them individually are taken into account, which prevents ignorance from the central government and a more effective and efficient America. State sovereignty is further enhanced as the constitution also...
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...that it is a saga of bloodshed, tears and sacrifices of millions of people. Since its independence, Bangladesh is a democratic People’s Republic and it is the mandate of the people that it is only the Constitution itself is the solemn expression of the people’s will and no other laws. But it is the irony of the nation’s fate that since the adoption of the Constitution, it has undergone so many amendments that it hardly has its original spirit, the spirit which motivated the Drafters to draft the First Constitution of Bangladesh after its glorious birth through a long liberation struggle. An unenviable feature of the 'constitutional development' of Bangladesh is that it had to withstand two extra-constitutional, i.e., Martial Law, regimes. Later on the Fifth and the Seventh Amendments to the Constitution validated the Martial Law regimes, which raise a series of questions concerning their legality, both substantive and procedural. Can Parliament validate anything, which is otherwise invalid from its very beginning? Can a Martial Law Proclamation amend any provision of the Constitution and can the Parliament give legal coverage to that amendment? Can Parliament amend any provision of the Constitution which is considered as a basic structure of the Constitution? All these questions have been in the discussion for long 30 years. In 2000 through a writ petition1 the validity of the first Martial Law Regime was challenged, so was challenged the authority of the Martial...
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...Essay on Federalism Your Name School/College/Course Name INTRODUCTION TO FEDERALISM : The Tenth Amendment to the Constitution (ratified in 1971) states the basic principle of the system of Federalism in America, saying "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (Hayes). Federalism is thus a system wherein a written constitution bestows powers to a central government and regional or sub-divisional governments. Both types of governments retain a significant amount of authority, being autonomous in nature and possessing the power to act directly upon the people through their officials and laws. Power sharing is done by granting delegated powers, concurrent powers and reserved powers to the national government, national and state governments, and state governments respectively. For instance, determination of foreign policy, power to make treaties and declare wars, control imports and exports, and printing money is done by the federal government. On the other hand, state and federal governments share responsibilities such as taxation, business regulation, environmental protection, and civil rights. At the Constitutional Convention of 1788, the Federalists and the Anti-Federalists were undecided on which style of government would suit America best. They debated over the actual scope of national authority versus the protections of individual rights. While...
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...1. constitutionalism, constitutional supremacy and the rule of law 1. constitutionalism a. Constitution without constitutionalism? Keith E Whittington, constitutionalism [5] * Constitutionalism = the constraining of government in order to better effectuate the fundamental principles of the political regime. i.e. A system of effective restrains on governmental action. * Constitution (often) = the written document that formalizes the framework of government * => Constitutionalism should be distinguished from the mere possession of a constitution * Written constitutions may provide few effective constraints on government or may be ignored, and governments may be effectively constrained w/o a written constitution (e.g. Britain) * Constitutionalism often (does not mean it necessarily equals to) associated specifically with liberalism, protection of individual rights against the state. * => constitutional state identified not by possession of a constitution but by its effective protection of individual rights. * (but individual rights only one set of fundamental principles that might impose meaningful limits on power of the state) * Constitutionalism also used to constrain power holders to care for the common weal or adhere to particular conceptions of national identity or religious law * 3-fold classification of province of constitutionalism * Normative Constitutionalism (most touched-on area) * Concerned with...
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...When asked to critically discuss the statement: “The Supremacy or Primacy principle is central to understanding the unique nature of the European Union Legal Order”, there are a few things we must first understand as this statement actually asks us three questions. Firstly what is the “unique nature” of the European Union (EU) Legal Order? Second, what is the supremacy or primacy principle? And finally, how important is the supremacy or primacy principle in achieving the goals of the European Union Legal Order? In my answer I will not separate these issues out, but instead I will attempt to answer the question with these issues in mind. According to Hendrik Jan van Eikema Hommes “if a multiplicity of legal rules displays a juridical unity, we can speak of a legal order or a legal system.” The European Union represents a supranational legal order within the specific fields delegated to the institutions and the competence of the community. This supranational federation is a new political entity which works above the individual national governments which make up its membership. The European Union is considered unique in this respect due to the level of integration which raises the Union from being merely an international agreement to being a supranational entity. Martin Steinfield describes the EU is a “federal order of sovereign states that has to grapple with legal political and economic relations in the wider world”. He also argues that “mixity” is at the heart of the European...
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...court, defined as federalism, which together administer and enforce the laws in the United States. Federalism distributes the government powers between both the federal governments and the state governments, which ensures that the power of the national government is decentralized. The US Constitution divides the federal government into three branches - legislative, executive, and judicial. The legislative branch, consisting of the House of Representative and the Senate, make laws, the executive branch, consisting of the President, Vice President, and his cabinet, carry out the laws, and the judicial branch, consisting of the Supreme Court and other courts, evaluates the laws. Additionally, each branch has the power to change acts of the other branches. The President has the power to veto laws passed by congress, Congress can confirm or reject the president’s appointments and can remove the president from office, and the justices of the Supreme Court can overturn unconstitutional laws. The State government is modeled after the federal government and contains the same three branches; however, each state has their own constitution, which is often more detailed than the federal constitution. All powers not allotted to the federal government are reserved for the state governments. In the state government, the executive branch is lead by a governor. State representatives make up the legislative branch, while the state Supreme Court makes up the judicial branch. States have...
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...law for business and society differ now in the 21st century. With the endorsement of the 10th amendment, Federal and state powers were separated, which lead to the birth of the Commerce and Supremacy Clause were born. Businesses have headquarters located worldwide and perform services at remote locations. The company I work for is no different and must abide by the law set forth by the government. 10th Amendment On December 15, 1971 the ratification of the 10th Amendment of the Constitution was put into place to separate the Federal and State Government. According to "Findlaw" (2014), "The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people." The delegates of that time were assured that the new Federal Government could not enforce powers that they did not have. The Tenth Amendment also assured the State delegates that when needed they would be able to exercise the reserve power that was granted to them. The Supremacy and Commerce clauses where enacted to assist both the Federal and State government with enforcing their power granted to them by the tenth Amendment. Supremacy and Commerce Clause With the adoption of the Supremacy and Commerce Clause, it allowed the Federal and State government to exercise their granted powers without reprisal from the other party. According to...
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...system of government where power is divided by a constitution, between local government and federal government. Under this rationale of governing, power and authority are designated such that each unit (state and federal) has exclusive authorities only it can exercise while other powers are required to be shared. Though Texas has its own constitution separate from that of United States, the supremacy clause prevents the Texas constitution from over ruling the US constitution and its laws. As the supremacy clause is defined in Article IV, Section 2 of the United States Constitution, it is the supreme law of the land and shall prevail over any conflicting state laws or as it relates to Texas any state issued constitutions. With over 93,000 words, 16 articles, 474 amendments resulting in 6 total constitutions, no other state within the US is structured and run so similarly to that of the US government. For example Texas has a clearly defined separation of power where no one branch of government shall be attached to either of the other branches (with the exception of the lieutenant governors role in the Senate. In 1866 after the civil war Texas was back in the Union and many actions were taken to bring the state into compliance with President Johnsons’ policy of reconstruction. At this time Texas did not adopt the 13th amendment that abolished slavery. In 1869, Under the Congressional Reconstruction Act of 1867, the US Constitution was declared to be the supreme law of the land which...
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...Constitutional Supremacy Constitution is the fundamental principles, rules and laws according to which a state is constituted and governed. The supremacy of the constitution means that the constitution remains the source of power and it is therefore superior to any individual, agent or groups within the state .No authority, even the court which interprets the constitution has the right to ignore the provisions of the constitution. Section 1(1) of the Nigerian 1999 Constitution declares that ’’This constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the federal republic of Nigeria’’. It is the court that has the power to interpret the law when it comes to constitutional matters either between individuals and government or between governments. The court has the power to invalidate any acts of the executive or legislature found to be inconsistent with the provision of the constitution of the land. A good example in Nigeria, was the Revenue Allocation Bill passed by the National Assembly and assented to by the president in 1982.It was later declared null and void by the supreme court. Such a Bill had the potentiality of generating a serious conflict between the federal government and the constituent states that might not be satisfied by it provisions. References 1. Omolayo S., &Arowolaju,B.(1987).Elements of Government(pp52-69).Lagos, Nigeria...
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...government consists of three branches: legislative, judicial, and exective. Within our legal system each branch of government plays a distinctive role that doesn’t over power the other branches due to checks and balances. The legislative branch consists of congress which writes the laws. The judicial branch consists of the Supreme Court that interupts the laws. The exective branch is the president and the president’s cabinet that enforces the laws. (Banker, 2010, p. 22) The federal government is granted express and implied powers. Express powers are granted to congress and spelled out in the U.S. Constitution. Implied powers are regulated powers that are derived from the express powers. Congress has the right to regulate such matters as coining money, establishing post offices, and to make all laws necessary and proper for carrying out delegated powers. (Banker, 2010, p.16). “The U.S. Constitution establishes and defines the role of the federal government and its relationship to the people of the United States” (Banker, 2010, p.25). States have a...
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