Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Publication
- Publication Type
- File Type
Articles 1 - 3 of 3
Full-Text Articles in Law
James Buchanan As Savior? Judicial Power, Political Fragmentation, And The Failed 1831 Repeal Of Section 25, Mark Graber
James Buchanan As Savior? Judicial Power, Political Fragmentation, And The Failed 1831 Repeal Of Section 25, Mark Graber
Mark Graber
James Buchanan is often credited with being the unlikely savior of judicial review in early Jacksonian America. In 1831, Buchanan, then a representative from Pennsylvania, issued a minority report criticizing the proposed repeal of Section 25 of the Judiciary Act of 1789 that is generally credited with convincing a skeptical Congress that fundamental constitutional norms required federal judicial oversight of state courts and state legislatures. This paper claims that federalism and political fragmentation were more responsible than James Buchanan for the failed repeal of Section 25, for the maintenance of judicial power in the United States during the transition from …
Deliberative Democracy And Weak Courts: Constitutional Design In Nascent Democracies, Edsel F. Tupaz
Deliberative Democracy And Weak Courts: Constitutional Design In Nascent Democracies, Edsel F. Tupaz
Edsel F Tupaz
This Article addresses the question of constitutional design in young and transitional democracies. It argues for the adoption of a “weak” form of judicial review, as opposed to “strong” review which typifies much of contemporary adjudication. It briefly describes how the dialogical strain of deliberative democratic theory might well constitute the normative predicate for systems of weak review. In doing so, the Article draws from various judicial practices, from European supranational tribunals to Canadian courts and even Indian jurisprudence. The Article concludes with the suggestion that no judicial apparatus other than the weak structure of judicial review can better incite …
James Buchanan As Savior? Judicial Power, Political Fragmentation, And The Failed 1831 Repeal Of Section 25, Mark A. Graber
James Buchanan As Savior? Judicial Power, Political Fragmentation, And The Failed 1831 Repeal Of Section 25, Mark A. Graber
Faculty Scholarship
James Buchanan is often credited with being the unlikely savior of judicial review in early Jacksonian America. In 1831, Buchanan, then a representative from Pennsylvania, issued a minority report criticizing the proposed repeal of Section 25 of the Judiciary Act of 1789 that is generally credited with convincing a skeptical Congress that fundamental constitutional norms required federal judicial oversight of state courts and state legislatures. This paper claims that federalism and political fragmentation were more responsible than James Buchanan for the failed repeal of Section 25, for the maintenance of judicial power in the United States during the transition from …