Comment on the arguments (all of them) that are being made below. Support your answer with specific references to the Constitution. Do you agree with the author? If not, explain in detail, why you disagree.
Besides finding no power of judicial review anywhere in Article II of the Constitutions provision of judicial powers, the Supremacy Clause found in Article VI presents a barrier against such a power.
\”This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.\”
Here we see the judges are to be bound to the Constitution and the laws of the land made in pursuance to the Constitution. This does not mean the Court must act unjustly by being bound to unconstitutional legislation, but it does mean that the Court cannot be above the law assume omniscient arbiter. Rather, the Congress makes laws and the judges must use those laws to rule in cases. Nowhere throughout the document is the Court granted the power to overturn law by its opinion. In a nation founded on separation of powers, it cannot be so. For, if the Court possesses the power of judicial review, it has the power to legislate, veto, and drive executive policy all by the power of its opinion. That is the very definition of legal tyranny.
Though my position may sound extreme in todays constitutional theory, such was not always the case. Save for Alexander Hamilton and some others who favored a strong centralized federal government, many of the Founders were against the idea of judicial review.
Constitutional Convention Delegate Robert Yates warned of its effect, [I]n their decisions [the Court] will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the Supreme Court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or control their adjudications. From this court there is no appeal.
Moreover, perhaps judicial reviews most ardent opponent Thomas Jefferson noted, You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.
We see in these two mens words a reasoned warning against judicial review as each understood what such a power could entail. It was not that these men did not want fidelity to the Constitution across government; they wanted nothing less. The very reason each in government swears an oath of protection of the Constitution is that each is responsible for persevering constitutional action.
America\’s bureaucracy performs three primary functions to help keep the governmental beehive buzzing along.
The bureaucracy implements the laws and policies made by elected officials.
These laws and policies need to be put into practice in specific situations and applied in all the contingencies of daily life. For example, a city council has decided that all dog owners must have their pets licensed and microchipped, but the city council members don\’t have the time to make sure that their decision is carried out. City workers, members of the city\’s bureaucracy, are the ones who answer questions and complaints about the law, help dog owners fill out the proper forms, decide when to waive the license fee, refer owners to veterinarians who can insert the microchips, work with the vets to hand out coupons for discounts on microchips, and enforce the law to make sure that all dog owners have their animals licensed and microchipped in a reasonable amount of time.
The bureaucracy provides necessary administrative functions, like conducting examinations, issuing permits and licenses, and collecting fees.
Essentially, it handles the paperwork of everyday government operations. Anyone who has a driver\’s license has come face-to-face with bureaucratic administration through the required written and behind-the-wheel exams, learning permits, fees at all stages, and finally applying for and receiving the driver\’s license itself.
The bureaucracy regulates various government activities.
In other words, it creates the rules and regulations that clarify how various laws work on a daily basis. For instance, the bureaucracy is responsible for writing rules and regulations for public schools, including curriculum standards, examination procedures, discipline methods, teacher training and licensing requirements, and administrative policies. Schoolchildren feel the effects of these regulations when they work on their assignments or take standardized tests. Teachers use them to design class work and assessments.
Explain why and how the functions of government democracy cannot be reached. Why are bureaucracies frequently inefficient and ineffective. Give specific examples relating to our federal system.