Constitutional or Legal Approach

Although constitutional theory as a discipline has its precursors in The Federalist and Justice Story`s commentaries on the Constitution, modern constitutional theory began with the publication of Alexander Bickel`s The Least Dangerous Branch. (The title is an allusion to The Federalist No. 78, in which Alexander Hamilton writes that the judiciary «will always be the least dangerous to the political rights of the Constitution» because it has neither the sword (like the executive power) nor the purse (like the legislative). The most important (but not the only) contribution of the book was to introduce the idea of «difficulty of counter-majority». The idea expressed by the notion of majority struggle is that there is a tension between democratic government (as he defines it, democratic government is majority government) and the judiciary. If the judiciary – an unelected branch of government – can overturn popular legislation, then there is either a fundamental contradiction within the democratic system or a tension that must be resolved by restricting the judiciary. This is partly because Marbury v. Madison, who established this judicial power in the early 19th century, gave the judiciary almost definitive authority over constitutional significance. With another pragmatic approach, a court could consider the extent to which the judiciary could play a constructive role in deciding a constitutional question.132 Under this approach, a judge could observe the «passive virtues» by refusing to rule on constitutional issues in a case by adhering to certain doctrines, including those according to which a judge avoids: to rule on political or constitutional issues.133 This can allow the Court to avoid involvement in frequent public controversies, preserve the Court`s institutional capital for key cases, and give democratic branches more space to address the issue and reach agreements on constitutional issues.134 The Supreme Court`s decision in Baker v. Carr135 illustrates the application of this second type of pragmatism. In that case, Justice William Brennan, who wrote for the majority, debated through dissenting Judge Felix Frankfurter whether the court was the right actor to consider the constitutionality of a state`s voter distribution among electoral districts, or whether the plaintiffs should have taken corrective action in the state legislature.136 Justice Brennan`s majority opinion in Baker ultimately concluded that: that the allocation decisions of a State are duly justiciable matters.

as an alternative holding company, it would require those harmed by poor distribution to seek redress through a political process directed against these claimants.137 Moral reasoning. This approach holds that certain moral concepts or ideals underlie certain terms of the text of the Constitution (e.g., «equal protection» or «due process») and that these concepts should influence judges` interpretation of the Constitution. Previous. The most frequently cited source of constitutional importance is previous Supreme Court decisions on questions of constitutional law. For most, if not all, judges, the precedent provides possible principles, rules, or standards to govern court decisions in future cases with arguably similar facts. In the early history of the United States, the Supreme Court began to exercise the power with which it is most closely and well known – its judicial oversight authority. In its 1803 decision in Marbury v. Madison,1 The Supreme Court has invoked and explained the basis of its power to review the constitutionality of the federal government`s actions.2 In the two decades following his detention at Marbury, the Court has ruled on other cases that have helped establish its power to review the constitutionality of state government policies.3 When a challenged government measure is unconstitutional, the Court may delete them and declare them invalid.4 In exercising the function of judicial review5, the Court must necessarily determine the meaning of a particular provision of the Constitution, often for the first time, before applying its interpretation of the Constitution to the relevant government action under review. The Russian concept of the rule of law has adopted many segments of the constitutional economy.

One of the founders of constitutional economics James M. Buchanan, who was awarded the Nobel Prize in Economics in 1986, argues that under constitutional government, any state intervention and regulation was based on three assumptions.