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
III section 2.
This chapter 7 follows the U.S. Constitution with the following exceptions:
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.
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.)
The Supreme Court is given the powers to
recommend (propose) changes in legislation regulating the courts. (see
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 :
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.
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
7.3 Original jurisdiction and right of appeal
See section 7.1 above.
Copyright © 1991-2003 John F. Knutsen
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