Congress and the Courts

Congress ◽  
2019 ◽  
pp. 261-289
Author(s):  
Benjamin Ginsberg ◽  
Kathryn Wagner Hill
Keyword(s):  
Good Deal ◽  
Federal Courts ◽  
Checks And Balances ◽  
Separated Powers ◽  
Constitutional System ◽  
The Relationship ◽  
Governmental System

This chapter turns to the relationship between the legislative and judiciary branches. It shows that in contemporary America, the judiciary has formed a de facto “union” with the executive and has in some respects helped to diminish the role of Congress in the American governmental system. This was not always the case, however, as the constitutional system of checks and balances assigns Congress a good deal of power over the judiciary. When they created the Constitution's system of separated powers and checks and balances, the framers had regarded the Congress as the branch most likely to seek to expand its power and the judiciary as the “least dangerous branch.” Since then, however, Americans have come to accept the idea that the federal courts can declare acts of Congress to be inconsistent with the Constitution and, therefore, null and void.

II Constitutional Jurisprudence, 5 Powers and Conflicts

2016 ◽  
Author(s):  
Barsotti Vittoria ◽  
Carozza Paolo G ◽  
Cartabia Marta ◽  
Simoncini Andrea
Keyword(s):  
Separation Of Powers ◽  
Case Law ◽  
Constitutional Court ◽  
Reciprocal Relations ◽  
The Republic ◽  
Constitutional System ◽  
Constitutional Jurisprudence ◽  
The Relationship ◽  
Principal Lines

By presenting the Court’s principal lines of case law regarding the allocation of powers in the Italian constitutional system, this chapter explores the constitutionally regulated relationships among the President, Executive, Parliament, and Judiciary. It reveals that rather than a “separation of powers” in the conventional sense of contemporary constitutional models, the Italian system is best described as instituting a set of reciprocal “relations of powers” with the Constitutional Court as the “judge of powers” that maintains and guarantees these interrelationships of constitutional actors. The chapter explores this role of the Constitutional Court in its relations with both Parliament and the President of the Republic, as well as the Court’s regulation of the relationship between the President and the Executive.

THE THEORY AND PRACTICE OF ‘SUPRA-CONSTITUTIONAL’ LIMITS ON CONSTITUTIONAL AMENDMENTS

2013 ◽  
Vol 62 (3) ◽  
pp. 557-597 ◽  
Author(s):  
Yaniv Roznai
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Legal Order ◽  
Theory And Practice ◽  
Constitutional Amendment ◽  
Constitutional Amendments ◽  
National Courts ◽  
Constitutional System ◽  
The Relationship

AbstractThis article examines whether there are any limitations on constitutional amendment powers that are external to the constitutional system and above it—‘supra-constitutional’ limits. It considers the theory and practice of the relationship between natural law, international law or other supranational law, and domestic constitutional law in a comparative prism. After considering the alleged supremacy of supranational law over constitutional amendments, the author explores the problem of the relationship between the different legal orders in the external/internal juridical spheres, and the important potential and actual role of national courts in ‘domesticating’ supranational law and enforcing its supremacy. It is claimed that despite the growing influence of supranational law, state practice demonstrates that constitutional law is still generally superior to international law, and even when the normative hierarchical superiority of supranational law is recognized within the domestic legal order, this supremacy derives not from supranational law as a separate legal order, but rather from the constitution itself. Therefore, it is claimed that existing practice regarding arguments of ‘supra-constitutional’ limitations are better described by explicit or implicit limitations within the constitution itself, through which supranational standards can be infused to serve as valid limitations on constitutional amendment powers.

The Efficiency Side of Separated Powers

1971 ◽  
Vol 5 (2) ◽  
pp. 113-131 ◽  
Author(s):  
Louis Fisher
Keyword(s):  
Separation Of Powers ◽  
Good Deal ◽  
Founding Fathers ◽  
Differences Of Opinion ◽  
Separated Powers ◽  
Governmental System

Considered the cornerstone of the American governmental system and an article of political faith for the Founding Fathers, the concept ‘separation of powers’ nevertheless has few rivals for ambiguity. There are wide differences of opinion as to what the Framers intended by the expression. We are told that they embraced the doctrine of Montesquieu, but there is a good deal of doubt as to what he meant and whether they borrowed from him in the first place. Moreover, the question remains: how should one apply a principle from 1787 to the issues of today?.

Italian Communism and Soviet Terror

2004 ◽  
Vol 6 (2) ◽  
pp. 57-63
Author(s):  
Richard Drake
Keyword(s):  
World War Ii ◽  
Soviet Union ◽  
Good Deal ◽  
Prisoners Of War ◽  
World War ◽  
The Soviet Union ◽  
Before And After ◽  
New Evidence ◽  
The Relationship

The declassification of materials from the Russian archives has provided a good deal of new evidence about the relationship between the Italian Communist Party (PCI) and the Soviet Union both before and after World War II. Two newly published collections of documents leave no doubt that, contrary to arguments made by supporters of the PCI, the Italian party was in fact strictly subservient to the dictates of Josif Stalin. The documents reveal the unsavory role of the PCI leader, Palmiro Togliatti, in the destruction of large sections of the Italian Communist movement and in the tragic fate of Italian prisoners of war who were held in the Soviet Union during and after World War II. Togliatti's legacy, as these documents make clear, was one of terror and the Stalinization of the PCI.

scholarly journals 12. The Relationship between Parliament, the Executive and the Judiciary

2019 ◽  
pp. 325-357
Author(s):  
Alison L. Young
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Case Law ◽  
Checks And Balances ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
The Uk ◽  
The Relationship ◽  
Traditional Understanding

When examining the recent evolution of the Constitution, it is argued that the UK has become more ‘legal’ as opposed to ‘political’. The last twenty years has seen a growth in legislation and case law, particularly that of the Supreme Court, regulating aspects of the UK constitution. This chapter investigates this claim. It argues that, whilst we can point to a growth in both legislation and case law, when we look at the case law more closely we can see that the courts balance an array of factors when determining how far to control executive actions. These factors include an analysis of the relative institutional features and constitutional role of the legislature, the executive and the courts. This evidence, in turn, questions the traditional understanding of the separation of powers as a hidden component of the UK constitution. It is not the case that courts merely balance the rule of law and parliamentary sovereignty in order to determine how far to control executive actions. Rather, the courts determine how to make this balance through the lens of the separation of powers, evaluating institutional and constitutional features. In doing so, they are upholding necessary checks and balances in the UK constitution.

scholarly journals Value of the constitutional teleology and constitutional legitimacy of the political and ideological diversity (pluralism): doctrine and practice

2015 ◽  
Vol 2 (3) ◽  
pp. 80-99
Author(s):  
I A Kravets
Keyword(s):  
Legal System ◽  
Party System ◽  
The Political ◽  
Political Pluralism ◽  
Legal Nature ◽  
Constitutional System ◽  
Relationship Of ◽  
The Relationship ◽  
Constitutional Legitimacy

The article examines the legal nature and mission the constitutional teleology, the role of teleological function of the constitution in the Soviet and modern Russian legal system, the concept and types of constitutional legitimacy, the relationship of constitutional legitimacy and political and ideological foundations of the constitutional system, the nature and limitations of the principles of political pluralism, multi-party system and ideological pluralism.

Part II The Relationship Between the Legislature and the Executive, 5 Legislative–Executive Relations in Presidential Democracies: The Case of Nigeria

2016 ◽  
Author(s):  
Sylvester Shikyil
Keyword(s):  
Good Governance ◽  
Separation Of Powers ◽  
General Introduction ◽  
Checks And Balances ◽  
Clear Separation ◽  
Presidential Democracies ◽  
Democratic Principles ◽  
The Military ◽  
The Relationship

This chapter examines how Nigeria’s legislature and executive interact and check each other in a manner that prevents the abuse of powers. Section 1 provides a general introduction. Section 2 focuses on the constitutional role of the legislature and the executive. Section 3 examines the features of Nigeria’s presidential system. Section 4 explores the areas of interaction between the legislature and the executive in the discharge of their constitutional roles. Section 5 discusses the causes of legislative–executive conflicts and their impact on good governance while Section 6 concludes. The chapter argues that although the constitution makes ample provisions for a clear separation of powers between the legislature, executive, and the judiciary as well as providing for checks and balances to guide the relationship between the three branches of government, democratic principles have not been fully embraced due to the military culture existing between 1966 and 1999.

Master and Servant

2017 ◽  
Author(s):  
Julian Swann
Keyword(s):  
Political System ◽  
Turning Point ◽  
Louis Xiv ◽  
Subsequent Trial ◽  
History Of ◽  
The Relationship ◽  
Governmental System ◽  
The Revolution

In the summer of 1661, Nicolas Fouquet the charismatic surintendant des finances appointed by the recently deceased cardinal Mazarin was arrested on the orders of the young Louis XIV. His subsequent trial and imprisonment was a crucial turning point in the history of the monarchy. It marked the end of the era of minister-favourites and the establishment of a new governmental system in which the king acted as the point of focus for a personal monarchy, aided and abetted by the secretaries of state. This chapter examines that transition, and the relationship between the royal master and his ministerial servants, and explores the role of disgrace in the functioning of a political system that would endure in many of its defining features until the eve of the Revolution.

scholarly journals The Role of the Supreme Court in a Democracy

1999 ◽  
Vol 33 (1) ◽  
pp. 1-12 ◽  
Author(s):  
Aharon Barak
Keyword(s):  
Supreme Court ◽  
Executive Branch ◽  
Checks And Balances ◽  
Equal Status ◽  
The Third ◽  
The Supreme Court ◽  
Legislative Branch ◽  
The Law ◽  
The Relationship

There are three constitutional branches: the legislative branch, the executive branch, and the judicial branch, and they are the product of our constitution, our Basic Laws. They are of equal status, and the relationship between them is one of “checks and balances”. This system is designed to assure that each branch operates within the confines of its authority, for no branch may have unlimited powers. The purpose of checks and balances is not effective government; its purpose is to guarantee freedom.In this system of powers, the task of the judicial branch is to adjudicate conflicts according to the laws. For that purpose, the judicial branch has to perform three principal functions. The first is concerned with determining the facts. From the entirety of the facts, one should determine those facts which are relevant to adjudicating the conflict. The second function is concerned with determining the law. The third function is concerned with applying the law to the facts, and drawing the appropriate judicial conclusion.

Peran Mahkamah Konstitusi dalam Mengawal Prinsip Checks and Balances Terhadap Dewan Perwakilan Daerah di Indonesia

2019 ◽  
Vol 2 (2) ◽  
pp. 239-252
Author(s):  
Ivana Eka Kusuma Wardani
Keyword(s):  
Judicial Review ◽  
Constitutional Court ◽  
Normative Study ◽  
Checks And Balances ◽  
State Institutions ◽  
Normative Approach ◽  
Review Mechanism ◽  
Constitutional System

This article is intended to answer the role of the Constitutional Court in overseeing checks and balances function of Regional Representative Council. This article is a normative study using normative approach. This article concludes that in performing its role, the Constitutional Court has influential authority for state institutions to support the implementation of structured constitutional system using checks and balances principles. Through the judicial review mechanism, the Constitutional Court functions as an interpreter of the 1945 Constitution. Decision of the Constitutional Court Number 30 / PUU-XVII / 2018 proves the role of the Constitutional Court in maintaining the implementation of checks and balances principles in Indonesia

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