VIII.6: Originalism versus the Living Constitution

A war of opinions has roared ever since the U.S. Constitution was written. In other words, how should we interpret it? The argument is about originalism versus the living constitution view. That is: Should we set the Constitution’s meaning in stone according to the opinions of its creators? This view is called originalism, or strict … Read more

VIII.5: More Objections to Judicial Review

Many American and British leaders have expressed objections to judicial review: Andrew Jackson clearly had his objections to judicial review: [T]he Supreme Court … ought not to control the coordinate authorities of this government. The Congress, the Executive, and the Court must, each for itself, be guided by its own opinion of the Constitution. (Jackson … Read more

VIII.4: Thomas Jefferson Fought Against Judicial Review

Thomas Jefferson was not involved in writing the U.S. Constitution, as he was America’s ambassador to France at the time. But later he worked against the Federalists, who wrote the Constitution. Judicial review was not a part of the Constitution. But it was supported by Alexander Hamilton (See my earlier post) in the Federalist Papers. … Read more

VIII.3: Anti-Federalist Objections to Judicial Review

The Federalists were the people who wrote the US Constitution. And the Anti-Federalists were those who fought against it. There were Anti-Federalists in the Constitutional Convention. And there were more in the state conventions for ratifying the US Constitution. Both groups were united against the Federalists’ expansion of power in the courts. In particular, there … Read more

VIII.2: Was Judicial Review Inevitable?

Judicial review transfers constitutional decision-making power from the legislature to the courts. The legislature writes a law. Then the executive branch implements it. And finally the courts apply it to specific cases. As a result, this sequence of events alone implies that judicial review was inevitable: The speedy transfer of this reliance from the legislatures … Read more

VIII.1: The Origin of Judicial Review

“Judicial review” means that a court has the power to declare that a law involved in a case brought before it is unconstitutional. A court has the power to strike down that law if it thinks the law contradicts its interpretation of the Constitution. Such decisions can be appealed to higher courts, and ultimately to … Read more

VII.5: Getting Back to the Constitution

Many believe that America could solve the problems with our government if only we would “get back to the Constitution”. I like that idea, but it misses the real point. Let’s imagine we could re-align our laws and government operations perfectly with the Constitution. If those laws and operations got away from the Constitution before, … Read more

VI.5: The Ninth and Tenth Amendments

The founders presented the U.S. Constitution to the state ratifying conventions in the 1780’s. Many state conventioneers only signed it on the condition that a Bill of Rights would be added. So James Madison added a Bill of Rights. It included the first eight amendments that guarantee specific rights. He also added two general amendments, … Read more

VI.2: States’ Rights and National Supremacy

The northern and southern states fought the Civil War over states’ rights. States’ rights and national supremacy involve the sovereignty of individual states within their own boundaries. The opposite point of view is that only the national government is truly sovereign, so it can override state decisions. The most volatile issue at the time of … Read more

V.1: Majority Rule and Minority Oppression

How can government allow majority rule and, at the same time, prevent minority oppression? Democracy means majority rule, but throughout history, majorities have been guilty of minority oppression. James Madison searched for a solution to this problem for America during the years before he and others wrote the U.S. Constitution. In his studies, he came … Read more

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