American society has undergone a revolution within a revolution.
Until the 1960s, America was a liberal country in the traditional
sense of legislative and executive checks and balances. Since then,
the Supreme Court has taken on the role of the protector of
individual rights against the will of the majority by creating, in
a series of decisions, new rights for criminal defendants,
atheists, homosexuals, illegal aliens, and others. Repeatedly, on a
variety of cases, the Court has overturned the actions of local
police or state laws under which local officials are acting. The
result, according to Quirk and Birdwell, is freedom for the lawless
and oppression for the law abiding. Judicial Dictatorship
challenges the status quo, arguing that in many respects the
Supreme Court has assumed authority far beyond the original intent
of the Founding Fathers.
In order to avoid abuse of power, the three branches of the
American government were designed to operate under a system of
checks and balances. However, this balance has been upset. The
Supreme Court has become the ultimate arbiter in the legal system
through exercise of the doctrine of judicial review, which allows
the court to invalidate any state or federal law it considers
inconsistent with the constitution. Supporters of judicial review
believe that there has to be a final arbiter of constitutional
interpretation, and the Judiciary is the most suitable choice.
Opponents, Thomas Jefferson and Abraham Lincoln among them,
believed that judicial review assumes the judicial branch is above
the other branches, a result the Constitution did not intend. The
democratic paradox is that the majority in America agreed to limit
its own power.
Jefferson believed that the will of the majority must always
prevail. His faith in the common man led him to advocate a weak
national government, one that derived its power from the people.
Alexander Hamilton, often Jefferson's adversary, lacking such
faith, feared "the amazing violence and turbulence of the
democratic spirit." This led him to believe in a strong national
government, a social and economic aristocracy, and finally,
judicial review. This conflict has yet to be resolved. Judicial
Dictatorship discusses the issue of who will decide if government
has gone beyond its proper powers. That issue, in turn, depends on
whether the Jeffersonian or Hamiltonian view of the nature of the
person prevails. In challenging customary ideological alignments of
conservative and liberal doctrine, Judicial Dictatorship will be of
interest to students and professionals in law, political
scientists, and those interested in U.S. history.
General
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