The Supreme Court Commentary
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7 The Supreme Court

7.1   Judicial powers

Confederate judicial powers are vested in one Supreme Court and in inferior courts established by law. Judicial powers are limited by section 3.3 and the regulations related to the Constitutional Tribunal. The text of section 7.1 is modeled on the U.S. Constitution Article III section 1 and partially on Article III section 2.

This chapter 7 follows the U.S. Constitution with the fol­lowing exceptions:

  1. The courts are expressly granted the powers of judicial review, (see section 7.2), i.e. the power to determine whether acts of Congress are in fact constitution­al.

  2. Regulations of the court system may not come into effect until a new President has taken office (see section 7.3). This is to prevent the blatant manipulation of the court system attempted by Franklin D. Roosevelt in the U.S. in the 30s. The Supreme Court declared parts of Roosevelt's New Deal legis­lation for un­constitutional. This resulted in Roosevelt threaten­ing to expand the court and appoint enough new justices to overrule those not bending to his will. Whether or not one believes in Roosevelt's goals, his methods in this particular context points to a constitutional deficiency, or perhaps several. (He might not have had the need for resorting to these extra-constitutional expedients if the procedure for changing the Constitution had been less cumbersome, see Amendments.)

  3. The Supreme Court is given the powers to recommend (propose) changes in legislation regulating the courts. (see section 7.3)

7.2   Judicial review

The power of judicial review is the power to declare ordinary laws un­constitutional and thereby making them un-enforceable. The courts have this power in most countries relying on the Anglo-American legal system including the U.S.A., Canada, Australia etc. In several of the European states, e.g. France and Germany, judicial review takes place only in specialized courts or institutions. While, in still other, like Switzerland, there is no mechanism for judicial review at the federal level.

Countries like Switzerland instead rely on democratic processes to produce laws that are in agreement with the con­stitution.

The advantages of a process of judicial review by ordinary courts are :

  1. It is continuously available. Even though a law at first sight appears to be cons­titutional, later experience may reveal flaws in the original assessment. Any system, like the French, that relies on the testing of constitutionality once at the outset, lacks the possibilities of taking into account these later developments.

  2. Judicial review by the courts ensures a more thorough, reliable and certain review than the democratic process alone. In essence, the people delegates to the courts the duty of acting as a watchdog in relation to possible encroach­ments on the Constitution by the executive and the legislative. This does not, of course, mean that the courts and the voters will always be in agreement. The courts ought to interpret the Constitut­ion as it is, while the people may actually desire a different constituti­onal clause or an amendment. The utility of an independent judiciary lies therein that any deficiencies in the Constitution is forced out into the open, there to be examined and decided by the voters directly.

7.3   Original jurisdiction and right of appeal

See section 7.1 above.


Revised: 2004-07-02

Copyright © 1991-2003 John F. Knutsen

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