Author: Ole J. Forsberg

American Politics and Government
The Law and the Judiciary
Scenario
•	The Congress passes a law that says all citizens who were not born in this country must return to their country of birth within one month.
•	The president signs the law and says he will have the armed forces help to enforce compliance. 
Question
•	Do the people have any recourse? In other words, can anything be done about this? If so, what? 
•	By “the people” who do we mean?
Scenario
•	The county council of Rhea County, Tennessee, passes a law making it illegal to be a homosexual in Rhea County.
•	What is the real status of this law?
Further Thoughts
•	Could we have a workable system of government without judicial review? How would such a system be organized? 
•	Does the fact that the Court currently has the power to review actions of the legislative and executive branches relieve these two branches of the obligation to review their own decisions to be certain they are constitutional? 
American Legal Theory
•	Uniquely American
•	Basis of American Law
•	Basis of American Courts
•	Judicial Review
•	Judicial Restraint
•	Judicial Philosophy
Uniquely American
•	The court is uniquely American
–	In no other country is the law as paramount 
–	The judiciary is beyond re-appointment cares
–	Thus, they are able to devote the remainder of their lives in contemplation of the Laws and the Constitution
•	The judiciary is independent!
–	Well, the Federal is
–	Most states elect their justices

Basis of American Law
•	Statute Law
–	Roman
–	Based on universality of Natural Law
–	Source: Written Laws
•	Common Law
–	German
–	Based on local tribalism
–	Source: Previous Decisions
•	Precedent and Dicta
Basis of American Courts
•	The Rule of Law
•	Fundamental Commitment to a Constitutional Government
•	Preserve, protect, and defend the Constitution of the US
•	Ours is the oldest written constitution still used
Judicial Review
•	Invalidate legislation
•	Invalidate executive orders
•	Ensures individual rights remain.
•	Protects all from the 'tyranny of the majority'
•	Anti-democratic
Structural Judicial Restraint
•	The Court can only deal with cases that come before it
•	It cannot seek out cases to decide
•	It does not advise; it only hands down judgments
•	Decisions are made on the specifics of the case and not on general principles
–	How, then, can an entire law be found unconstitutional?
American Judicial Philosophy
•	Adversary system
–	Justices serve as mediators and interpreters of the law vis-à-vis the arguments placed before them.
–	The court is entirely neutral in its interpretation.
–	In a jury trial, the Court plays the role of the referee.
•	Purpose of court system
–	To keep the innocent out of jail
–	Punish the guilty
Individual Judicial Philosophy
•	Judicial Activism vs. Judicial Restraint
–	What do these terms mean?
Questions
•	Is the American commitment to law a good thing?
•	How do jury systems fit into the Rule of Law?
•	Can juries override the Constitution?
–	Jury nullification