GPOSC 225 1st Edition Lecture 20Outline of Last Lecture I. Imperial Presidencya. Fisher Articleb. Congressional DelegationII. Rhetorical PresidencyIII. Framer’s IntentOutline of Current Lecture - The Judiciary continuedI. Presidential Government - FisherII. Federal CourtsA. American Judicial PowerB. Sources of Judicial PowerIII. Judicial ReviewA. Anglo American Constitutional TraditionIV. Federalist 78Current Lecture - The Judiciary“Presidential Government”Fisher’s article says that the framers did not intend a presidential government. They thought public policy and protection of individual freedoms would result from good structure and procedure. The president, to them, is NOT the sole organ of foreign policy, he is not the only voice for america like modern presidents claim.Why then do we assume today that congress is dysfunctional and place greater confidence in the president? HE’s not an expert, he’s not more fiscally responsible. Federal CourtsFederal courts are one part of a 2 court system.AMerican Judicial Power: Courts in general are “substantially passive instruments”- it must wait for a case to come to it- they cannot decide on an issue it things needs to be addressed nor can they request a case. But onea case comes to the Supreme Court (SC) it has the power to influence public policy in vast ways (unlike in many other nations)● e.g. - Brown V Board (1954) bannin segregated schools - hugely influenced policy. It lead to bussing etc. so ta tates cannot mandate segregated schools.● e.g. - 2002 SC ruling that execution of mentally disabled people violates the 8th amendment condemning cruel and unusual punishment.This makes the judiciary look like policy makers - which is called “Judicial overreach”. It is very common for pundits political candidates to blast “liberal judges” and claim judges are “activist judges” who try to make law rather than interpret it and apply it.REALITY: 1. Most federal court rulings involved criminal and civil trial verdicts in district courts and statutory interpretation (statute: law. Congress passes a law but the language is unclear or contradictory so the court must read all of it and clarifies/interprets it). In Statutory interpretation the process has been established for years so here is not really room to beswayed by ideological interpretation.2. Occasionally there is constitutional interpretation which attracts more public/media attention and brings greater policy consequences.3. But the rulings based on constitution may result in sweeping policy changes because he courts are not overreaching but merely applying the law (4th amendment) and this forced other branches to comply. The court is Constitutionally required to apply this law. NOTE: political conservatives AND liberals can be “activist judges”. Ideological preferences can shape both parties decisions. Sources of Judicial PowerJudicial Review - What Is judicial review? The most important part of judicial power, it is the power to review laws as passed by legislatures and executive actions and pass judgements on their legality. This authority/power comes from:Anglo American Constitutional Tradition● Common law tradition (pp 373-74). The British didn’t have a written constitution rather Parliament statutes could be judged based on long standing judicial rulings (common law) which created a standard. Colonists based arguments for parliamentary taxes and other laws saying they violated the common law. BUT Great britain never embraced Judicial Review; judges in Great Britain always had less power than the power given to American Judges. ● Bt Americans can turn to written constitution: Common law reliance unreliable so they draft the constitution as a source of higher law. SO the law takes precedence over legislative action. BUT the constitution is not self enforcing.● So the judiciary should get to determine if the government violated the terms of the constitution.Federalist 781. a defense of tenure during good behavior and2. judicial review.Antifederalists say Judicial Review is non-democratic, and too powerful. Hamilton must demonstrate how JR is democratic.1. Tenure during good behavior breeds an independent spirit necessary for judges to stand up againsta. constitutional encroachments: One branch exceeding powers at the expense of another branch. Can’t have popular election of judges because it leads to bribery,favoritism etc!b. constitutional violations of individual