The absence of Ship-Money from the canon of judicial review creates a lacuna in the scholarship on the theoretical foundations for judicial review. This review details how the majority and dissenting opinions in Ship-Money provided Americans with two distinctive paths to a judicial power to declare laws unconstitutional. The majority opinions emphasized sovereignty. Judicial review serves to protect the will of the sovereign, be that the King, Parliament or the people. The dissents emphasized fundamental law. Judicial review serves to protect higher law principles. Marbury grounded judicial review in a theory of sovereignty. James Otis when protesting the Stamp Act grounded judicial review in higher law principles. Both approaches intertwine in American constitutional development.
The absence of Ship-Money from the canon of judicial review creates a lacuna in the scholarship on the political construction of judicial review. Increasing agreement exists among scholars of constitutional law that judicial review has political foundations. Ran Hirschl and Tom Ginsburg detail how the judicialization of politics outside the United States has similar political foundations. Talk of politics disappears, however, when conversation turns to the rise of parliamentary sovereignty in England. Distinguished histories begin with Bonham’s Case, which scholars discuss as an intervention in the theory of judicial power. The English path ends with Blackstone declaring that courts have no power to declare laws unconstitutional. Parliamentary sovereignty appears to have just happened in England or Bonham perhaps aside, been the rule from time immemorial. No politics here.
Ship-Money puts politics back into explanations for the rise of parliamentary sovereignty in England and the later rise of judicial power in the United States. The judicial opinions in Ship-Money demonstrate that judicial elites in the mid-seventeenth century had developed a conception of judicial power rooted in royal sovereignty that justified striking down parliamentary legislation inconsistent with royal prerogatives. The political foundations of Ship-Money judicial review, however, collapsed almost immediately. The judicial majority in Ship-Money placed the courts firmly on what become within a decade the losing side of the English Civil War when asserting that sovereignty was vested in the King, that one aspect of this sovereignty was royal power to levy exactations without parliamentary consent, and that laws that trenched on this regal prerogative were void. Institutional power after 1648 and 1688 flowed to Parliament, the institution on the winning side of the English revolution. The new understanding of judicial power, celebrated by Blackstone, maintained that courts could not strike down legislation because Parliament was sovereign, but that justices could declare illegal royal decrees inconsistent with Parliamentary sovereignty. “Ultra vires” judicial power and only “ultra vires” judicial power does not date from “time immemorial, but became during the late seventeenth and early eighteenth centuries the dominant philosophy of the members of Parliament who gained power after the English Civil War and Glorious Revolution.
1. The development of Primary Care Medicine is a reality that must soon be realized in all countries in the world, including Indonesia. For that reason alone the development of Primary Care Doctors or DLP in Indonesia does not need to be questioned any more. But many relevant questions remain. Related to this statement, if Indonesia does not want to be left behind by our neighbors, such as Myanmar, Vietnam, Malaysia, Singapore, Thailand, Australia, India, Pakistan, Japan, and others, the improvement of medical services at the primary level should be implemented immediately. Review of Primary Care Practice and Education (RPCPE) is a published journal that accommodates various activities related to current views and studies which relate to primary care at the local, regional, national or even international level, so from that perspective the RPCPE is published. We invite and encourage anyone and from anywhere to contribute their ideas, thoughts or ideas concerning the content of this journal. Please send your criticisms and suggestions as well as any responses to the posts contained in this journal. We welcome your input for the future of DLP....... By Adi Heru Sutomo 2. Welcome to the inaugural issue of “Review of Primary Care Practice and Education” (RPCPE), the Indonesian, journal dedicated to the science and practice of Primary Care. The recognition of Primary Care Doctors as a specialty by the government and other specialty boards has been a long time coming. It is a great step forward for Primary Care, Primary Care Doctors and more importantly, for the people of Indonesia. Finally, this is an acknowledgment of your expertise in primary care and of all of the hard work you do every day for your patients. Recognition at the national level is only a first step. We now have the task of developing training programs and certifications for those physicians who are already in practice..... By Mark A. Graber
Looking Off the Ball details how and why constitutional law influences both judicial and public decision making. Treating justices as free to express their partisan commitments may seem to explain Bush v. Gore*, but not the judicial failure to intervene in the other numerous presidential elections in which the candidate favored by most members of the Supreme Court lost. Constitutional norms and standards generate legal agreements among persons who dispute the underlying merits of particular policies under constitutional attack. The norms and standards explain constitutional criticism, why only a small proportion of the political questions that occupy Americans are normally resolved into constitutional questions, and how legislatures by making constitutionally safe choices may immunize their decisions from judicial scrutiny. Constitutional law structures those constitutional controversies that do take place. Constitutional debates are often quite different from other political debates because constitutional norms and standards require constitutional decision makers treat as important phenomena of less interest to policy makers and attach little significance to those phenomena crucial to the underlying policy decision. Political scientists who neatly divide the justificatory world into legal norms and policy norms implicitly take sides in hotly contested interpretive debates and overlook the most important differences between elected officials and justices as constitutional decision makers. * 531 U.S. 98 (2000).
We challenge the almost unexamined assumption that the constitutional powers of the president can be blithely abstracted from the occupant of the White House so that constitutional decision makers may not take into account whether they are making decisions for a constitutional order functioning within normal parameters or a constitutional order reeling from the collapse of crucial assumptions underlying the constitutional text and ordinary constitutional practice. We begin by briefly elaborating the consensus that Donald Trump lacks the constitutional, even if not the “legal,” qualifications to be president of the United States. The next section discusses how Publius in The Federalist Papers closely yoked presidential powers to the character of the office-holder. We then note how such other interpretive exercises as plays, athletics and contract law routinely make adjustments when events undermine the assumptions underlying the authoritative text, whether that text be instantiated in a script, play or bargain. American constitutional practice, we continue, has been historically far more responsive to Publian failures than contemporary claims about executive power under President Trump acknowledge. Such decisions as Brown v. Board of Education and New York Times Co. v. Sullivan are far better explained as judicial responses to constitutional frauds perpetrated by the Jim Crow South than the more abstracted reasons given by the justices in their opinions. Brown, in fact, provides a model for thinking about limiting the power of the anti-Publian president. Such judicial strategies include focusing on actual motives for executive action, taking rationality standards seriously, and limiting wherever possible official powers when the officeholder or officeholders demonstrate that they are incapable of using or unwilling to use those powers responsibly or consistently with established constitutional norms.
Constitutional thinkers have much to learn about constitutions in general and constitutional transitions more specifically by extending their studies to all entities that purport to be constitutional rather than confining their analyses to the constitutions of nation-states or, in order to include American states, the constitution of semi-sovereign entities. The constitutions of student councils and nation-states create and empower governing institutions. Both are higher law than any edict enacted by the governing institutions they create. The reasons why high schools rarely experience constitutional transitions as disruptive help explain why nation-states almost always experience constitutional transitions as disruptive. The constitutions of many American states in crucial respects bear a closer resemblance to the constitutions of student councils than the constitutions of nation-states. The more a state constitution resembles that of a student council, some evidence suggests, the less likely that constitutional transformations or regime changes in that state are disruptive.
This review documents how scholarly concern with democratic deficits in American constitutionalism has shifted from the courts to electoral institutions. Prominent political scientists are increasingly rejecting the countermajoritarian difficulty as the proper framework for studying and evaluating judicial power. Political scientists, who study Congress and the presidency, however, have recently emphasized countermajoritarian difficulties with electoral institutions. Realistic normative appraisals of American political institutions, this emerging literature on constitutional politics in the United States maintains, should begin by postulating a set of democratic and constitutional goods, determine the extent to which American institutions as a whole are delivering those goods, and either explain how the political system as a whole might be redesigned to better deliver those goods or accept second-best constitutional goods that can actually be delivered by some attainable combination of political institutions.
