Is the Judiciary Really the Weakest Branch of Government

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POL 1001

Response paper number four
In your educated opinion, is the Judiciary really the weakest branch of government? Explain your answer. Has the Court gained or lost power over time? How would Hamilton respond to your argument?

Judicial Branch is established under Article III of the Constitution. It was created to be the weakest of all three branches of government. Each branch has its own characteristics, but what distinguishes this branch from other two is that Judiciary is passive. It cannot act until someone brings case in front of them. Even if some law or act is unconstitutional, courts are powerless to do anything on their own. Contrary to Judiciary, other two branches are active, and have power to attack other subjects. The reason that Judiciary has passive role is because it supposed to serve as defense mechanism and to protect rights and privileges of the people. In fact, Alexander Hamilton pointed out in his Federalist paper number 78 “The Executive … holds the sword of the community. The legislature … commands the purse … prescribes the rules … The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment…” It is clear from this that Judiciary is the weakest branch of government or at least it was. Many people believe that Judiciary gain much more power than the frames intended to give and interpretation of intended rights is different from what it should be. The Article III is short and it would seem that answer on the question “what rights did the framers intended to give?” should be also short and simple. However topic is controversial and there is no one right answer. The simple reason for that is because even among the framers there was no consent about every single issue, or section and article they put into constitution. The content of the Constitution was result of negotiations between two groups whose beliefs were pretty much different. In my opinion such a broad interpretation of Article III (but also many other articles and amendments) was exactly because the framers could not reach consensus about some detailed and explicit Article that would explain and cover every single situation and how the law should be applied. Nothing better could be than perfect constitution that covers all possible topics and situations and for every problem or disagreement that occurs to look in the book for the solution, but unfortunately that is not possible and word “interpretation” will still be in use. Framers gave us only a base or foundation upon which we have to build our society. For few years while they were building foundation they certainly could not write a perfect document that would not require any future changes. Therefore, there is Article V of the Constitution that allows its amending. But that is not enough. As I already mention the broad interpretation of the Articles and Amendments require Judiciary to take the part in the game. Judiciary has huge power and even though it is independent it still can be controlled by president or congress. The fact that president has a power of appointing the federal and the Supreme Court judges with congressional approval tells enough about the strength of the Judiciary compared to executive and legislative branch. Judiciary is powerful and strong, but as long it is not in extensive conflict with other two branches. There are no many cases where the Supreme Court struck down acts of Congress or president. Maybe the most famous are Marbury v. Madison (1803), New Deal Programs (1930s) and United States v. Nixon (1974). Even in many of those cases the Supreme Court was cautious in making decision. If the Supreme Court is not sure its decision will be implemented it would not rule the certain way. The Supreme Court decisions are political. Presidents tend...
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