The government system of separation of powers and checks and balances refers to a unified government with three separate branches where none are more important than the other. However, this same system of all checks and no balances refers to a (flawed system in it itself because the congressional branch can team up with the executive branch in a particular matter or even when the executive branch may use his power of veto the congress can still overrule it with the ¾ vote.)
Roscoe Pound defined mechanical jurisprudence as the way judges applied previous precedents on new cases by which the problem of the consequences was disregarded. He believed this alone would not solve the jurisprudential problems but instead offered his theory of sociological jurisprudence where judges were open to changes in society where it would benefit the growth but maintained the methods or “taught legal traditions,”
The rationale used in the changes of labor laws in Muller and Lochner was the apparent societal norms imposed on gender because of the fundamental difference. As it turned out, the roles of women and men in labor and in society were perceived to be different but, in both cases, it posed the question of reasonable legislation. The court used the substantive due process of law concept in which the ends was more important than the means of the legislation, so they examined the content of the legislation specifically its economic implications. New York failed to show a rational state interest in regulation of its labor laws compared to Oregon. Since men were tougher, they had greater ability to contract and work longer hours compared to women who were inherently physically weaker they needed constitutional protection of their rights.
“Higher Law” is still used as an introduction to its subject which appeals to both conservatives and liberals alike. Corwin was the populizer of the term judicial review in 1910 which stood for the power the judicial branch to declare legislation or actions by the executive branch unconstitutional. One of the most influenced cases was Marbury v. Madison. In recent years as the partisan divide increases the power of the robe in general has become more important to liberal activists and conservatives alike. Both want to be able to refer to past cases and overturn others such as Roe v. Wade.
The issue of an American common law was so complicated in the post ratification period covered by Wood because it takes time as it is a process that judges issue rulings on cases. Common law is the body of legal rules made by judges as they start to issue rulings on various cases as opposed to laws made by legislation. Congress writes bills first and then votes on them to pass them into law. A common law cannot be established immediately since it has to build up like an encyclopedia that has various volumes. It uses the system of jurisprudence, again, based on judicial precedents from other courts.
Slaves were used differently in the Northern colonies compared to the Southern ones. In the South they were more likely to be placed in plantations while in the North they were more likely to be used as domestic. As they started abolishing slavery some states actually just changed the titles to indentured or servants for life. New York freed children born after 1799 but were indentured until young adults. Slavery lingered on in the northern states until up to twenty-five years after the formal abolishment. In the South, they expected the federal government to support slavery especially with the Fugitive Slave Act. Slavery was integrated as a national and global economy especially as the industrial revolution continued.
The first national bank was created in 1791 after Hamilton was able to get the approval in order to print money and have a safe place for public funds among other functions but it closed in 1811 when Congress failed to renew it. Though it had the initial approval of twenty years, many critics managed to convince Congress not to renew it. After the War of 1812, it was difficult to borrow money from other countries and the value of the currency had devalued; the country had difficulty making payments as well. As a result, the solution was to open up another national or central bank, the second national bank. Both were formed after economic struggles following a war.
Alexis de Tocqueville believed that the spirit of religion and the spirit of liberty from the Puritans was possible because it was different from the European-Christian-controlled governments. The newly emigrants were neither rich nor poor and had great knowledge of politics as they seeked the freedom to practice their own religion. In this experiment in a new place they had open opportunities to attempt different types of governance while keeping freedom of religion. They were not forced to follow the orders imposed by monarchy in their settlements and were able to contribute to their laws. This in turn contributed to a need for a government that would maintain both liberties in a centralized government.
Judicial restraint is not always practiced by conservatives and judicial activism is also not always practiced by liberals; the liberal/conservative divide is different from the activism/restraint dimension. Clear examples of Supreme Court restraint and activism are Dred Scott v. Stanford- judicial restraint, and Brown v. Board of Education-judicial activism. When liberals are nominated into the court, conservatives praise constraint but when conservatives also enter the court, liberals also praise constraint so that both uphold the past rulings regardless of whether it was a liberal or conservative ruling. When Kavanaugh was going through confirmation hearing liberals asked him about honoring abortion rulings as they too were afraid, he would become a judicial activist and engage in independed analysis thus overturning Roe v. Wade.
The Supreme Court led by the Chief Justice John Marshall in 1803 decided the landmark case William Marbury versus James Madison which confirmed the principle of judicial review or the ability of the Supreme Court to limit Congressional power by declaring unconstitutionality of legislation. The Court ruled that president Thomas Jefferson could not prevent William Marbury from taking office but it also ruled that the Court had no jurisdiction in this case so Jefferson could not be forced to seat Marbury. The Judiciary Act of 1789 gave the Supreme Court jurisdiction, but the Marshall court ruled the act to be an unconstitutional extension of judiciary power unto the executive branch.
