Hamiltons Views on Judicial Power Essay Example | Topics and Well Written Essays - 750 words

Hamiltons Views on Judicial origin - Essay ExampleThe concept is enshrined in the constitution of the United States and in the various states that expressly forbids severally branch of government to usurp the ability of any other branch.Hamilton gives the anxiety of their time that because the legislature holds the cup of tea strings and the executive the sword of society, the legality of the courts can be undermined, that it is the weakest branch of government with neither exit nor force to enforce its judgement.Considering the fact that the the constitution provides for certain limitations which the legislature is proscribed from enacting such as bill of fare of attainder, ex-post facto law, the question arosed on how the courts may declare such unconstitutional law null and void with impartiality and justice.Hamilton rationalized that the two non-judicial branches must not take offense for the declaration of their acts as unconstitutional as superstar of interference becau se the court is only declaring the letter of the constitution and did not do so as maven superior to them, that the act does not constitute a substitution of their will or pleasure.The constitution, in bless to assure the independency of judges, declares their tenure of service as permanent based pm good behavior. The day-after-day appointment of judges would likely indebt them to either executive or legislative branch responsible for their appointment.The independence of the judiciary is essential to the enforcement of the constitution because it is an aspect, like that of separation of powers, of the concept of checks and balance and ultimately of governance. Judicial independence is not only a normative ideal but an institutional virtue as well. And in the said virtue and ideal lies the capacity of the courts to protect individual rights, to police the structural limits of governmental power and to decide individual disputes based on the applicable law and the factual records of each case without strike to intimidation or other impermissible influences, if any.Judge Learned authorise (1958) urged caution in the class period of judicial power. He considered the source and nature of the power of judicial constitutional review as indispensable to prevent the failure of the government created by the constitution. He also proposed judicial restraint, saying that the power should be confined to the need that evoked it meaning, as a check on the usurpation of power by the other branches. For him the judiciary plays the necessary role in maintaining a government between absolutism and the salmagundi of democracy that so often prevailed in Greek cities during the sixth to fourth centuries before our era. Like Hamilton and Montesquieu, Hand believes that no single branch should have absolute power, especially not the judiciary.Modern thinkers (Shane, 1998) proffer that the range of judicial restraint may often be misleading, unhelpful and even counter-produ ctive. They propose another paradigm, that of inter-branch accountability. They withdraw that every branch has the power to make life more difficult for