The Supreme Court And Government By The

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The Supreme Court And Government By The People Essay, Research Paper Jason I. Explain the distinction between substance and process and the importance of the distinction for the issues discussed in this course. ?Over the past few years?the court?holding that henceforth, before it can be determined that you Are entitled to ?due process? at all, and thus necessarily before it can be decided what process is ? due,? you must show that what you have been deprived of amounts to a ?liberty interest? or perhaps a ?property interest.? (Ely, p.19) Just as a skilled magician will deliberately show his empty top hat to the audience right before he pulls a rabbit out by its ears, so was judicial review pulled out of thin air. Judicial review has opened the floodgates of substantive

procedures in the courts, which refer to content based decisions made by judges, as a tool employed in matters of judicial review and has become the dominant means of legislating in areas which would not otherwise be open to legal re-interpretation. In essence substance refers to the ability and right of judges to employ their own values in rendering decisions concerning a case at hand or in the past, reflecting a non-interpretivist approach to legislating. Such decisions are grounded in the Substantive Due Process Clause of the Fourteenth Amendment (a doctrine created by Justice Taney in the Dred Scott case itself derived from the Fifth amendment), which ostensibly provides citizens protection from the state governments. Substance also refers to morality and decisions based on

natural law as opposed to positivism. Process is at the heart of democracy because it reflects the legitimate method by which a community can enact laws in a system of representative democracy; to that end, the principal virtue of a process oriented political system is its independence of concurrent political, moral, or societal pressures. These issues are obviously paramount in studying social reform and the role of the courts (judges) as legislators or guardians of correct legislative practice. #2 Explain Ely?s account of prejudice and the role it plays in his theory of judicial review. ?So stereotypes, at least in the ordinary sense of that term, are the inevitable stuff of legislation.?(Ely, p.156) Ely describes prejudice as a ?lens distorting reality,? that ?blinds us to

overlapping interests which in fact exist.? In reference to the treatment of minorities and blacks in particular, prejudice in the legislative levels of government is the basis of laws which put a minority group without adequate, if any representation or voice at a disadvantage without reference to some worthy social goal and at the judicial level implies a consensus of ?solicitude? among the judiciary toward such ?discrete? and ?insular? groups within society. The other type of prejudice involves ?suspicious classifications,? or stereotypes that may disadvantage groups but still is within the boundaries of democracy; this type of classification is considered harmful by Ely when we consider the presence of undue stereotypes that are discovered in previous acts of legislation. Ely

asserts a more interperetivist approach although he concedes the practical implausibility of such an approach because of the inability of the constitution to forsee all possible situations. In the final analysis, Ely thinks in a representative democracy laws should agree with those values which are fundamental in the constitution (and surrounding historical documents) and which obligates, without undue discrimination obligates all to obey, despite a plurality of perspectives. Finally, Ely offers up that because matters of racial, sexual, moral and other prejudices are essentially primae facia in terms of what constitutes discrimination, a process-based model for the Supreme Court would be optimal, the only difficult being hard cases. #3 Explain Dworkin?s critique of Ely?s theory.