By Stephen M. Engel
Politicians have lengthy puzzled, or maybe been brazenly antagonistic to, the legitimacy of judicial authority, yet that authority turns out to became safer through the years. What explains the recurrence of hostilities and but the protection of judicial energy? Addressing this query anew, Stephen Engel issues to the slow popularity of dissenting perspectives of the structure, that's, the legitimacy and loyalty of solid competition. Politicians' altering notion of the chance posed by means of competition prompted how manipulations of judicial authority took form. As politicians' perspectives towards competition replaced over the years, their method towards the judiciary - the place competition might turn into entrenched - replaced in addition. as soon as competition was once now not noticeable as a primary danger to the Constitution's survival, and a number of constitutional interpretations have been thought of valid, judicial strength should be construed much less because the seat of an illegitimate competition and extra as an tool to accomplish political ends. Politicians have been likely to harness it to serve their goals than to brazenly undermine its legitimacy. briefly, conflicts among the elected branches and the judiciary haven't subsided. they've got replaced shape. they've got shifted from measures that undermine judicial legitimacy to measures that harness judicial energy for political ends. Engel's publication brings our realizing of those manipulations into line with different advancements, akin to the institution of political events, the recognition of dependable competition, the advance of other modes of constitutional interpretation, and the emergence of rights-based pluralism.
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Additional resources for American politicians confront the court : opposition politics and changing responses to judicial power
By specifying a generalizeable political dynamic, Ferejohn’s account does explain why attacks on judicial independence persist and why FDR’s courtpacking proposal and Nixon’s jurisdiction-stripping proposal failed. Yet, his focus on collective action problems leads to an unsatisfying truism:Â€Congress constrains the judiciary when Congress is hostile toward it and can overcome transaction costs. And, problematically, he does not assess the opposite possibility, namely, that anti-judicial legislation may aggregate different interests and serve as a common carrier.
How these tactics vary in their impact needs to be more thoroughly assessed, but none suggest a norm of deference to the judiciary. Therefore, David Mayhew, Congress:Â€ The Electoral Connection (New Haven:Â€Yale University Press, 1974), 49–77. 45 Geyh, 55. , 57. , 101. 48 Ferejohn, 1999, 358. 44 30 Political Development and Elected-Branch Relations I question whether this norm can credibly be said to have developed at either the level of political elites or the wider electorate. Consider the difficulties in amending the Judiciary Act of 1789 in the 1820s, 1830s, and 1860s.
29 Ran Hirschl, Toward Juristocracy:Â€ The Origins and Consequences of the New Constitutionalism (Cambridge, MA:Â€Harvard University Press, 2004), 39. 30 Mancur Olsen, “Dictatorship, Democracy, and Development,” American Political Science Review 87 (September 1993), 567–76; Barry Weingast, “The Political Foundations of Democracy and the Rule of Law,” American Political Science Review 91 (June 1997), 245–63. , Constitutionalism and Democracy (New York:Â€Cambridge University Press, 1988); Alec Stone Sweet, “Judicialization and the Construction of Governance,” Comparative Political Studies 32 (1989), 147–84.
American politicians confront the court : opposition politics and changing responses to judicial power by Stephen M. Engel
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