• THE AMERICAN SENATE IS THE MOST POWERFUL 2ND

CHAMBER IN THE WORLD

1. EXECUTIVE POWERS:

The American Senate is the only legislative body in the world which enjoys some direct
executive powers. It shares with the president the powers to make appointment of top-
ranking officials and through this it controls the internal administration of the federal
government. No treaties or agreements, concluded by the State-Department or President,
are valid until ratified by the Senate. Through this power the Senate controls the foreign
policy of the country. In addition, the Senate has powers to impeach the President, Vice-
President and other high ranking officials. It should be noted that these powers are
exclusively exercised by the Senate. This raises the prestige of and dignity of the Senate.

2. ABSENCE OF PARLIMENTARY SYSTM OF GOVERNMENT:

In countries with parliamentary form of government, the lower house attains a higher status
than the upper house. In many countries the lower house has control over the executive;
i.e. In England & Pakistan. In US, however, the position is reverse. It is the Upper House or
Senate which has sufficient control over the executive as well as over the Lower House or
the House of Representatives. However; the Lower House in US is completely devoid of such
power. The constitution has made the Senate a coordinate chamber to the House of
Representatives in the legislative matters, while in parliamentary form of system, the lower
house has more power in legislative matters.

3. SMALL MEMBERSHIP AND LONG TENURE:

The membership of the Senate is small but its tenure is longer than the House of
Representatives. On the other hand the membership of the House of Representatives is
large but the tenure is short. The Senate consists of 100 members and its members are
elected for a term of 6 years. While the membership of the House Representatives is 437
but it is only elected for 2 years term. Because of this fact, the Senators are not worried
about their re-election after every two years. By staying longer on the legislative seat, the
Senate also acquires greater experience, more credibility and exerts greater influence than
the House of Representatives. By staying longer, the Senate can also fulfill its long term
policies and programs. It is because of these reasons that the House of Representatives is
forced to concur with the Senate in order to expedite business.

4. SENATORS ARE SENIOR POLITITIONS:

Senior politicians and men with legislative experience with wider knowledge of public affairs,
usually opt for the membership of the Senate, because of its longer term and greater
prestige than the House of Representatives. The result is that the Senate becomes superior
to the House of Representatives in terms of ineffectual quality, legal talents, intellect and
political wisdom. The media gives greater coverage to the Senatorial speeches and sessions
than to the House of Representatives. The public attention is more focused on Senate as
well.

In other countries the Senators may be men of legislative experience with wider knowledge
of public affairs, but the fact that their Senate it self is not Superior to their Lower House
diminishes their prestige. In these countries the attention of media and public is on the
lower houses.

5. DIRECT ELECTIONS OF SENATORS:

Unlike the Senators or members of the upper house in countries like England, Pakistan or
Canada, the US senators are directly elected by the people. It is a common democratic
experience that an indirectly elected upper house finds it difficult to resist the will of the
lower house which is elected directly by the people. However; in US the Senate can claim
equally representative character with the House of Representatives. It is therefore the
House of Representative is not capable of dominating the Senate.

6. EQUAL LEGISLATIVE AND FINANCIAL POWERS:

The Senate in US enjoys equal powers in legislative and financial spheres with the House of
Representative, both in theory and practice. In England, the Upper House of House of Lords
is given lesser authority than the Lower House or the House of Commons. The Upper
House/Senate in Pakistan shares the same position as it does in England. Since the Senate
and House of Representatives in US share equal powers in legislative matters there are
frequent deadlocks. To resolve the deadlock Conference Committees are formed. However,
the legislative history of US shows that the Senate’s viewpoint ultimately prevails over the
House of Representatives.

7. GREATER FREEDOM OF SPEECH:

The senators enjoy greater freedom of speech than the members of House of
Representatives. A Senator can speak for as long as he desires. This enables a full length,
simple and flexible debate on every matter and discusses every measure to solve the
issues. Upper Houses in other countries do not enjoy such freedom of speech. In countries
like Pakistan many senators are refused to talk on different matters by the chairman.

8. COURT OF IMPEACHMENT:

The Senate in US has sole right to impeach the President, Vice-President and other high
ranking officials. The US senate has powers to investigate into all affairs whether public or
private. This fact enhances the prestige of the Senate and enables it to over shadow the
House of Representatives. No senate or upper house in the world has similar power.

9. SOLIDARITY OF THE SENATE:

The US Senate is the one legislative organ in the world, the members of which have
solidarity and unity irrespective of their political affiliations. In 1938, when President
Roosevelt tried to bypass the “senatorial courtesy”, the Senators of his own party stood
against him along with the opposing members of the Senate. The entire Senate stands as
one unit, whenever any attack on its authority is made.

10. THE SENATORS REPRESENT THE STATES:

The members of the Senate are directly elected by the entire population of a State, whereas
the members of House of Representatives are elected by a fraction of population from their
respective States. The Senators therefore have proud privilege of having greater
representative character and greater popular support against the members of House of
Representatives. The Senators represent the States as political units and regard them
selves as representatives of the Nation as a whole. The local interest which dominates the
House of Representatives hardly exists in the Senate. This gives to the Senate a natural
precedence over the Lower House and adds to its majesty and dignity.

• CONCLUSION:

The US Senate is indeed a unique House. It partakes in all three functions of State;
Executive, Legislative and Judicial.

In words of F.J. Haskin: “there are things which the President and the Senate may do
without the assent of the House of Representatives, and things which the Senate and House
of Representatives may do without the assent of the President, yet the President and the
House or Representatives can do comparatively little without the assent of Senate.”

It is thus manifest that while upper chambers in the other countries of the world have been
declining in power and importance, the US Senate is adding to its strength and importance.
All these facts prove that no other Upper Chamber such as the British House of Lords,
Pakistani or Canadian Senate enjoys such powers as are enjoyed by the Senate of US. The
House of Lords of England is described as the weakest upper chamber of the world. The
nominated Senate of Canada has no prestige compared to the Lower House. The Senate of
Pakistan also has lesser prestige than the National Assembly with regards to the legislative
and fiscal administration, as it is indirectly elected. We may, therefore, conclude that the US
Senate is one of the great success of the American Constitution, a worth monument of the
wisdom and foresight of its fathers. It can easily be said, without much of a debate, that the
US Senate is the most powerful Senate or Second Chamber or Upper House in the world.

________________________________________
THE HOUSE OF REPRESENTATIVES
________________________________________

The House of Representatives is the lower chamber of the American Congress. It is a

legislative body sharing powers with the Senate. Even though it is weaker in power
compared to Senate, no legislative measures are possible without the House of
Representatives. It is the popular body representing the US citizens on national principle
based on population. Citizens of all sex and race but of at least 18 years of age can
participate in electing a member of House of Representative.

COMPOSITION:

Initially the House of Representatives consisted of 65 members but now its membership is
permanently fixed to 437 unless changed by a making an amendment to the constitution.
The number of representatives for each State is fixed by the Congress in proportion to its
population.

TERM:

The term of House of Representatives is two years. It cannot be dissolved earlier.

SESSION:

The House meets every year on 3rd of January according to the 20th amendment of the
constitution and remains in session until its members vote to adjourn. However, the
President can convene its special session. It than confine it self strictly to the task, for which
it is summoned and does not discuss any other matter.

QUALIFICATIONS:

The constitution calls for a candidate for the House of Representatives to posses the
following qualifications:

a.) Must be at least 25 years of age

b.) Must be citizen of US for at least 7 years
c.) Must be citizen of State from which he wants to contest election
d.) Must not hold any office or profit under the government of US

PRIVILEGES:

a.) The member gets annual salary of $22,500 plus $2,500 expense money.

b.) Members are free from arrest except for treason, felony and breach of peace, during the
session of the house.

c.) Members enjoy the freedom of speech on floor of the House.

THE SPEAKER:

Unlike the Senate, the Vie-President does not preside over the House of Representatives.
Instead the House elects its own speaker. The elections for the House speaker are held
purely on party-lines. The candidate for the House Speaker is member of the majority party,
he is partisan and openly favors the party to which he belongs, even after he elected as the
Speaker. He is virtually the leader of the majority party and the legislative leadership
devolves around him.

FUNCTIONS AND POWERS OF THE SPEAKER OF THE HOUSE

a.) Presides over the session of the House and maintains order and decorum in the House.

b.) Recognizes members on the floor of the House and allows members to speak.

c.) Decided points of order passed by the members of the House.

d.) Puts question to the vote of the House and declares the result.

e.) Interprets and applies the rules of procedure of the House, when any question on
procedure is raised. His decision cannot be questioned.

f.) Refers the bills to an appropriate standing committee for consideration and action
g.) Selects the chairman of the committee of the whole House and appoints his deputy. Also
appoints members of the special committee

h.) Signs all the bills passed by the House

POWERS OF HOUSE OF REPRESENTATIVES:

a.) LESGISLATIVE POWERS:

The House of Representatives enjoys co-equal and coordinate authority with Senate in the
domain of legislation. However, Senate has authority to amend or reject any bill passed by
the House of Representatives.

b.) FINANCIAL POWERS:

According to the Clause-1, Section-7, Article-1 of the constitution ‘all financial bills must
originate in the House of Representatives. This is an adoption from the British Constitution.
According to this doctrine, all national finances must be controlled by the House directly
responsible to the people. The financial matters mean all legislations involving
appropriation. All appropriation bills originate in House of Representatives. This means that
the annual Budget Bill must be formed by the House of Representatives.

(Note: In British Constitution the House of commons is directly responsible to the people as
it is elected by the people, hence the financial powers are vested the House of Commons.
House of Lords, which passes for Senate, has no say in financial affairs. However, in US the
Senate is equally responsible to the people as like the House of Representatives it is directly
elected by the people. Yet it has no say in financial bill. The clause that House of
Representatives alone should control the finances was established by the original
constitution, but even after the amendment which switched senatorial elections from
indirect method to direct method, the clause were not amended)

However, Senate has power to tame revenue legislations and this can increase or decrease
any given appropriation. Senate can also amend or reject the money bill.

c.) EXECUTIVE POWERS:

Unlike Senate, the House of Representatives does not posses much of a control over the
executive. The only executive power it possesses is that along with Senate it can declare
war and conclude peace. Unlike in parliamentary form of government, the executive neither
holds responsibility nor can be removed by the House of Representatives. However, it has
exclusive right to initiate impeachment proceeding by preparing charges against the
executive, which in this case is President. House or Representatives can also initiate
impeachment for Vice-President, Supreme Court judges and other high ranking officials.

d.) AMENDING POWERS:

The House of Representatives participates in the process of amending the constitution of

US. It shares with Senate to propose amendments in the constitution by two-third majority
in both chambers.
e.) ELECTORAL POWERS:

Unlike parliamentary form of government, the House of Representatives does not posses
powers to participate in electoral process of the Executive. It can only elect a President if no
candidate has secured the majority. In this case the House will elect President from top 3
candidates.

In all the democracies of the world the Lower Chamber enjoys greater power than the Upper
Chamber. However, the situation is reverse in US, even though the framers of the
constitution intended to make the House of Representatives more powerful.

FACTORS CONTRIBUTING FOR THE WEAKNESS OF THE HOUSE OF

REPRESENTATIVES

1. MORE TO SENATE:

The senate possesses equal powers in legislative and financial sphere (except for producing
money bill). The Senate also has powers to reject any legislation passed by House of
Representatives. This weakens the powers of House of Representatives.

The Senate is also a directly elected body like the House, but unlike the House it has longer
tenure and is a permanent body. This also weakens the powers of House of Representatives.

In other democracies of the World, the Senate lacks in power. US senate at least has
powers to amend and reject money bill, while other Senates around the world don’t even
come across the money bill. Unlike the US Senate the Senates around the world are
indirectly elected. This gives more powers to Lower Chambers in other democracies, which
makes Lower Chambers in other countries more powerful than the Lower Chamber in US.

2. NO POWER OVER EXECUTIVE:

Unlike in the parliamentary form of government, the executive is neither responsible to the
House nor does he spring from it. He can’t even be removed by the House. Even the
ministers are not elected from the House. In place of ministers, there are secretaries in US
which are appointed by the President and ratified by the Senate. The house has no power in
this process.

In other democracies in the world, the Lower chambers elect the Executive and his
ministers. This makes other Lower chambers around the world more powerful than the
House of Representatives in US.

3. TREATIES AND APPOINTMENTS:

Unlike other Lower-Chambers around the world, the House has no power or participation in
appointment of high ranking official like the secretaries. The house can not even participate
in treaties concluded by the President.

4. SHORT TENURE:

The tenure of the House is very short. It is elected for only two years. This discourages the
senior and talented personal from joining the House. Instead they opt for Senate, which in
turn makes Senate more intellect and powerful. Because of this short tenure the members
of the House are busier in election process than in legislation process. As soon as they are
elected, they start working on their next election.

5. LARGE MEMBERSHIP LIMITATIONS:

Unlike the Senate, the House has larger membership. This possesses some limitations. Time
limit is imposed during the speech. This does not enable the speaker to make the debate
lively.

6. LACK OF LEADERSHIP:

Unlike parliamentary of government, like in England, there is no leader of the House or

spokesman of the government. The speaker of the House is the leader but he is too busy
presiding meetings and regulating debates.

7. LOYALTY TO POLITICAL PARTIES:

Unlike the Senators, the House members pay more loyalty to their parties rather than
creating a political unity like in the Senate. This hampers the influence of the House.

8. UNDER THE CHECK OF JUDICIAL REVIEW:

The powers of judicial review in the hands of Supreme Court dampen the initiative of the
House in legislative sphere. The members are too worried that their legislative bill may be
passed as void by the Supreme Court.

All these factors contribute in making the House a weak chamber. It is probably the weakest
Lower Chamber when compared to the Lower Chambers of other democracies.

________________________________________
LAW-MAKING PROCESS:
________________________________________

The Law determines the policy of the country. The main function of the congress is to make
laws or to amend or repel the existing ones. The process of law making and amending it is
known as Legislative Process. Before going through the Law making process it is important
to have some knowledge about bills and resolution that play important role in Law making.
All legislative proposals are of two kinds; Bills and Resolutions.

(a.) BILLS:

Bills are of three kinds: Public bills, Private bills and money bills.

• A PUBLIC BILL:

It deals with general matters of public importance and embodies a major program of
government policy.
• A PRIVATE BILLS:

It deals with a person or place and is of private importance.

• A MONEY BILL:

It deals with money matters such as taxes and is originated in the House of
Representatives.

(b.) RESOLUTIONS:

There are three kinds of resolutions namely; Joint Resolution, Concurrent Resolution and
Simple House or Senate Resolution.

• A JOINT RESOLUTION:

It is passed by both Houses of Congress and is submitted to President for his assent.

• A CONCURRENT RESOLUTION:

It is employed to express an attitude, opinion or objective of both Houses; which correct

errors in the bills already passed by the Congress and it needs no verifications by the
President.

• SIMPLE HOUSE OR SENATE RESOLUTION:

It expresses the opinion and purpose of the concerned House and does not require any
endorsement.

STAGES OF LAW MAKING OR LEGISLATIVE PROCESS

The following stages are adopted in Law-Making process in the Congress:

1. FIRST READING:

Normally all Bills are introduced by a member of either house. That member is known as the
Sponsor of the Bill. The sponsor of the bill from the House, endorses the copy of the bill with
his name and drops it in the House or the Secretary’s table in the Senate. The bill is
immediately numbered in order of its representation and is sent to government printing
press. The copies of Bill are than made available to all members of the House next morning.
This process is called introduction or the “First Reading.”

2. COMMITTEE STAGE:

The presiding officer refers these bills to the appropriate standing committees. In the case
of private bill the sponsor himself writes the name of the committee while in the case of
public bills, the subject matter of a bill would indicate to which committee it should be
referred to.
This stage is one of the important steps in law making process. In the committees, bills are
first given preliminary examination and a decision is taken, whether the proposal has any
mint or not. Important matters are sorted out for further consideration, while unimportant
and irrelevant matters are dropped or “Pigeon-Hold” as it is called in official terms.

The important matters are studied by the concerned committee, which gives it a thorough
consideration either by it self or by sub-committee. The committee or sub-committee
collects information and data on the subject matter through public hearings and Congress
Library in order to arrive at a decision. The lobbyists or Pressure-groups who are interested
in the Bill also provide information to the committee.

After collecting the information through various sources, the committees meet in the
executive session. It may take following courses:

a.) It may approve the bill, as it stands

b.) It may amend the bill and send the same to the concerned house for approval

c.) It may re-write the bill keeping only its name and send it to the house for adoption

d.) It may condemn the bill and may substitute it with the new one

e.) It may kill or reject or Pigeon-Hold the bill by keeping it on its files.

3. REPORTING THE BILL:

Usually the chairman of the committee or someone designated by him may report the
verdict of the committee, to the concerned chamber. In important matters the reporting is
extensive and in ordinary matters the reporting is little more than a simple affirmative. The
killing of the Bill is not reported in the House. The majority of the House can also discharge
a petition for reporting back or calling back of the Bill from the Committee. This has to be
done within 30 days of the submitting of Bill to the committee. This petition rule is rarely
applied.

4. SECOND READING:

After the reporting of the bill, the “Second Reading” is resumed. Every clause of the Bill is
discussed and debated upon. Amendments and counter amendments are proposed and
passed by voting. When the bill is finally shaped in second reading it generally re-printed
and place is again placed before the House for “Third Reading.” It is not necessary to re-
print the Bill for Third Reading. But before the third reading, the house may it self turn into
a Committee to discuss the Bill put forward by the other standing committee.

5. COMMITTEE OF THE WHOLE:

When the House goes into the committee of the whole; the speaker leaves the chair, the
rules of the House are temporarily suspended. The quorum is reduced to 110 members in
the committee of the whole. This reduction allows greater freedom of speech to the
members and gets more time to speak as well. Than the members propose large number of
amendments, give explanations and may be even dispose of various elements of the bill.

6. THIRD READING:
At this stage only the title of the Bill is read without proposing any amendment and is voted
upon by the House. If the Bill is passed by the House successfully, it is certified by the clerk
and is sent to the Senate.

7. THE BILL IN THE SENATE:

The senate deals with the bill in the similar procedure. A senator announces that he is
introducing. Reading the title of the bill constitute the first-reading. Second-Reading is
considered completed if there is no objection and the bill is sent to the committee requested
by the instructor.

The committees in the Senate are like that of the House. After the committee reports the
bill favorable, it is placed on Senate calendar at least a day before being taken up. The
senate holds its meeting and voting is done. If the bill gets majority it passes, if it can not
get required majority it is rejected.

KILLING THE BILL IN THE SENATE

• If the Bill is rejected out right it is than considered as killed.

• Another method to kill the bill in senate is by using the device of Filibustering and cloture.

a.) FILIBUSTERING:

During the filibustering, a senator holds the floor for ours delivering relevant and irrelevant
remarks, primarily intended to obstruct until some concessions are obtained.

b.) CLOTURE:

The cloture is also known as Closure. It requires a petition to end a debate, signed by one-
sixth of the senators. If this petition gets two-third majority, the cloture is in effect.

• Incase the Senate proposes some amendments to the bill, it is sent back to the House of
Representatives. If the House agrees the amendments are made. If the House does not
agree with the Senate, an effort is made to come to an agreement through give and take
policy or through compromise. If this attempt also fails, the bill is referred to the joint-
conference committee consisting of members from both the houses (9 members each). If
the conference does not reach a compromise, the bill is than Killed.

If there is an agreement between the two houses on the bill, it is than referred to the
President.

8. APPROVAL BY THE PRESIDENT:

After the bill is passed by both the Houses, it is brought forward the President for approval
before it could become a Law. If the President approves of the bill he will sign it and it will
than become a Law. If he disapproves of the Bill, he will return the Bill to the House where
it was originated and send his objections along with it. The President can also veto the Bill in
an attempt to kill it. In such case, two-third majority of both houses can vote against the
Presidential veto. If the Houses successfully vote against Presidential Veto, the Bill becomes
a Law without Presidential approval. If the President does not return the Bill within 10 days
(Excluding Sundays), the bill becomes a Law without his signatures – this is valid if the
Congress is still in session. If the Congress session has been adjourned before 10 days have
elapsed, the President may easily kill the bill by abstaining over it. This is called President’s
“Pocket-Veto.”

PROCEDURE OF LAW MAKING ON FINANCIAL BILL

As discussed before, the money bill can only be originated in the House of Representatives.
The Bureau of budget prepares the budget of the country under the direction and the
control of the President. The President makes the major fiscal policies with the help of the
Bureau of Budget. The budget is planned for annual expenditure and is renewed after every
year from July 1st to 30th.

The Budget is than introduced in the House of Representatives and passed by it. After the
introduction of the budget, it is sent to appropriate committee. I.e. the Revenue bill is sent
to the committee of “Ways and Means”, while the appropriation bill is sent to the committee
on Appropriation.

The committee of “Ways & Means” holds public hearings of interested parties, which may be
effective in one way or another. The bill is than reported back to the House with or without
amendments. The House holds debates over the bill. After the Bill is passed by the House, it
is referred to the Senate. The Senate can amend the Bill with concurrence of the House. If
there is disagreement between two houses, the joint-conference committees are called in. If
there is agreement the bill is reported to the President for signature and it becomes the Law
for finance for the fiscal year.

------------------------------------------------------------------------------
This concludes our sub-chapter on "The Congress" ... only the Judicial system and Political Parites are left. I hope to post
them by tomorrow. That will conclude our session on US Constitution. I appologise for the slow rate of updating and
posting.
__________________
[COLOR="DarkRed"][B]17th amendment is mockery of our constitution !. May those who
have implemented it burn in hell ![/B][/COLOR]

Last edited by Ahmed Ali Shah; Monday, April 03, 2006 at 03:22 AM.

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 chapter 1.5, JUDICIARY

CHAPTER 1.5
FEDERAL JUDICIARY
________________________________________

CONTENTS

1. INTRODUCTION

2. NEED FOR FEDERAL JUDICIARY

3. TYPES OF COURTS

4. JUDICIAL REVIEW

-----------------------------------------------------------------------------------

________________________________________
INTRODUCTION
________________________________________

The Judicial system of America is unique in many ways. It is federal in character and has
judicial supremacy and power of judicial review. The American judiciary has extensive
powers to defend the Constitution; which allows it to declare any law passed by Congress or
an order issued by the Chief Executive (President) as void, if it is found contrary to the spirit
of the constitution. The American constitution is based on the doctrine of ‘Separation of
Powers’ aided by the system of ‘Checks and Balances.’ Under these features, the judiciary
keeps all the organs and functionaries of the government within their respective jurisdiction
and limitation.

The Article-III of the American Constitution has provided for the establishment of Supreme
Court, separate from the State’s courts. The constitution has declared Supreme Court
superior to the State judiciary. Hence The Supreme Court is the head of the judicial System
of United States.

The Federal Judiciary consists of constitutional courts and Legislative Courts. The
constitutional courts consist of courts of claims and courts of customs and appeals; while
Legislative Courts consists of territorial courts, District of Columbia Court of Military
Appeals.

________________________________________
NEED FOR FEDERAL JUDICIARY
________________________________________

The framers of the constitution and the founding fathers of America felt a need for an
establishment of National Judiciary, which could be entrusted with the functions of deciding
disputes among the States and between Federation and the Federating States. They
realized that disputes were certain to arise as the meaning of various provisions of the
constitution and interpretation of law passed by Congress were different.

They also planned for a “More Perfect Union” to “establish justice.” There for there was a
need for establishment of a court, which would be an impartial umpire, supreme and
independent of the States. Thus the constitution provides for a Supreme Court and its
organization, procedure and the organization of the courts inferior to it are left to be
determined by the Congress.

________________________________________
TYPES OF COURTS
________________________________________

There are tow types of courts. Namely:

1. Constitutional Courts
2. Legislative Courts

1. CONSTITUTIONAL COURTS:
The Constitutional Courts are those which are established by the authority of Article-III of
the Constitution. The Constitutional Courts consist of:

(a.) Supreme Court

(b.) Court of Appeals
(c.) District Courts
(d.) Courts of Claims
(e.) Custom Courts
(f.) Courts of Customs and Appeals

(a.) SUPREME COURT:

The Supreme Court is the highest court in the US. It is composed of one (1) Chief Justice
and eight (8) associate judges. They are appointed by the President with the advice and
consent of Senate. The Supreme Court members cannot be dissolved, but can be
impeached if found of any misbehavior towards constitution.

• JURISDICTION OF U.S SUPREME COURT

The US Supreme Court maintains both the original and the appellate jurisdictions.

The original jurisdiction extends to the following cases:

i. Cases affecting ambassadors and other public ministers/secretaries.

ii. Intergovernmental cases, in which Federal Government or State Government are parties.

Meaning it has original but not exclusive jurisdictions in:

cases brought by ministers of foreign States, in controversies between Federal Government

and Federating States and in action by a State against aliens or against citizens of another
State.

The appellate jurisdiction extends to:

All cases falling under the federal judicial authority. It can hear appeals from the lower
federal courts and from State High Courts, in the cases which involve the interpretation of
the Constitution in letter and spirit.

Cases that do not originate in Supreme Court come to it by an appeal or big writ of
certiorari. Appeals are allowed as a matter of right in cases involving Federal and State
powers, which obviously require ruling by the highest court (that is the Supreme Court). On
the petition of certiorari the Supreme Court has the option of granting of denying review.
About 80% of Supreme Court’s business arises from the petitions of certiorari.

• SESSION OF U.S SUPREME COURT:

The Supreme Court’s term begins annually on 1st Monday in October and usually ends early
in the following June. Special session may be summoned by the Chief Justice when the
Court is adjourned, on the occasion of unusual importance and urgency.

• CONFERENCE:

After the completion of arguments, the justices of the Supreme Court meet in a conference,
on Friday, during a session, to compare views and vote. The Chief Justice states his opinion
first but votes last. He also decides who will write the Court’s opinion. Every judge has to
attend the conference with a responsibility of writing an opinion that will accord with his
vote. If a majority can not reach an agreement, the case is re-argued and the decision of
lower courts is allowed to stand.

ROLE SUPREME COURT

The U.S Supreme Court plays a dual role. In first place, it has to act as the guardian and
custodian of the constitution and fundamental rights of the citizens. In the second place, it
permits and helps the constitution to develop and expand with the course of time.

• GUARDIAN OF THE CONSTITUTION AND FUNDAMENTAL RIGHTS OF CITIZENS:

The U.S Supreme Court is the final interpreter of the Constitution. As a guardian of
Constitution, it protects Federating States against any encroachment by the Federal
Government or Vice Versa. It protects the individuals against invasion of rights by the
Federating States and the Federal Government. It keeps the powers of various functionaries
of the government of US within their respective spheres of authority.

The Supreme Court possesses the power of judicial review. It can declare any law passed by
the Congress or any action taken by the President as “null and void” if they go against the
provisions of the Constitution. Hence Supreme Court is the final court to judge the
constitutionality of any law or executive decision. However, it can only move into the matter
if a case is brought before it.

The Supreme Court declares laws and orders “null & void” on the basis of ‘due process of
law’ clause. It means a law may be declared unconstitutional, if it does not satisfy the rules
of reasons. In practice it means that a majority of Supreme Court judges may declare any
law or executive action as invalid if it appears to them as unreasonable, unjust or immoral
even though it is not a direct contravention of a particular clause of the constitution. In US
law is correct only if the Supreme Court judges think that it is correct no matter it is against
the constitution or not.

The judges of the Supreme Court not only interpret the Constitution but also determine
political and economic policy of the United States. In U.S it is not for the people to say what
law they want, but it is for the Supreme Court to declare what law is according to the
constitution. Thus, the Supreme Court has become ‘Super Legislature’, or ‘3rd Chamber of
legislature’.

• DEVELOPMENT OF CONSTITUTION:

The Supreme Court has contributed a good towards the development of the Constitution. By
its powers of Judicial Review, the Supreme Court has always interpreted the Constitution to
meet the needs of the times. By involving the doctrine of implied powers, it has made the
Centre strong at the cost of States. Without this US federalism might have failed in these
tomes of growing centralism.

If it was not for the liberal interpretation by the Supreme Court, the U.S constitution might
have failed to satisfy the early 13 States which founded the country & also other States
which joined in afterwards.
The decision and interpretation of the Supreme Court have played so great a role in
evolution of the constitution that some commentators have called the Supreme Court a
“continuous constitutional conventions.”

(b.) COURTS OF APPEALS:

Immediately below the Supreme Court stands the Courts of Appeal, created in 1891 to
facilitate the disposition of cases and lessen the burden of Supreme Court. U.S is divided
into ten circuits with a Court of Appeals for Each. About 3 to 9 judges, including a single
Judge from Supreme Court are appointed by the President for each circuit. District judges
can also be appointed to serve in the appeal courts.

The courts of appeals meet on regular intervals in each circuit. They only have slight original
jurisdictions. The cases decided by the district courts, legislative courts and quasi-judicial
boards come to these courts for review. However, the decisions and reviews of the courts of
appeals can only be reviewed by the Supreme Court.

(c.) DISTRICT COURTS:

There are 89 District Courts in U.S. 50 States are divided into 87 districts, while there is 1
district court for ‘District of Columbia’ and one for ‘Puerto Rico.’ Each State has at least 1
district court but the States with larger population include 2 or more of these courts. Each
District Court has at least 1 judge but up to 24 judges can be appointed there by the
President with the consent of the Senate.

The permanent seat of the District Courts is maintained at a principle city. The Court holds
meetings on regular intervals in various cities within the district. These courts chiefly
possess the original jurisdiction. No cases come to them on appeal. Cases begin in State
Courts and are usually transferred to them. Ordinarily the District Court cases require a
single judge; however 3 judges must sit in certain types of cases.

(d.) COURTS OF CLAIMS:

The court of claims was created by the “Act of the Congress” in 1855, to hear claims against
the United States. In 1953, it became a Constitutional Court. The Courts handle claims
arising out of the Constitution, acts of Congress and executive order. The claims comprise of
unpaid salary, property taken for public use, contractual obligation and personal injuries for
which the Federal Government is allegedly responsible.

The courts of claims consist of a Chief Justice and 4 associate justices, who are appointed
by the President with the consent of the Senate. The Court sits in Washington D.C on 1st
Monday in each December.

(v.) CUSTOMS COURT:

It was established in 1890 as a Board of United States General Appraisers. It became

Constitutional Court in 1926. It consists of a Chief Judge and 8 associate judges, appointed
by President with the approval of Senate. Note more than 5 judges may be from same
political party.

The Court hears disputes that arise out of decision made by Customs officers in the treasury
department. The main office of Customs Court is located in New York City, however some
case are also heard at the principle ports such as Boston, New Orleans and San Francisco.

(vi.) COURT OF COUSTOMS & APPEALS:

The Court of Customs and Appeals was established in 1910 and became Constitutional Court
in 1958. It consists of a Chief Judge along with 4 associate judges, appointed by the
President with Senatorial approval. The Court usually sits in Washington but it may convene
in any judicial circuit.

The Court hears appeals against the decisions of Custom Courts. Its judgments and decrees
are final with the exception that they may be reviewed upon through certiorari by the
Supreme Court.

2. LEGISLATIVE COURTS
The legislative courts are those, which are created under the laws of the Congress. They are
also known as Special Courts having no jurisdictions under the Article-III of the
Constitution. They include the territorial courts, District of Columbia (D.C) Courts and Court
of Military Appeals.

(i.) TERRITORIAL COURTS:

Besides the local courts each territory has a court, which functions as local courts in the
Panama Canal Zone, The Virgin Island, Puerto Rico and Guam. It has jurisdictions over both
Federal and territorial matters. The judges of territorial courts are not governed by the
provisions of the Constitution but by the Legislative Acts. They are usually appointed for the
term of 8 years.

(ii.) THE COURTS OF DISTRICT OF COLUMBIA:

The DC Courts exercise exclusive jurisdiction over the local cases of the district of general
trial.

(iii.) THE COURTS OF MILITARY APPEALS:

This court was established in 1950. It is located in the Department of Defence for
administrative purpose. It consists of 3 civilian judges appointed by the President with
Senate’s approval. It reviews the more serious court material decisions concerning members
of armed forces. Its decisions are final except in those rare cases in which Supreme Court
does not agree on law point.

________________________________________
JUDICIAL REVIEW
________________________________________
MEANING OF JUDICIAL REVIEW:

Judicial Review may be defined as the power of the Supreme Court to review all national
and State Legislation and executive acts and declare them null or void if found un
constitutional.

POWER TO JUDICIAL REVIEW:

The U.S constitution does not contain any specific provision concerning the power of Judicial
Review. This issue was in fact never discussed in the constitutional convention of 1789.
Many believe that the framers of the constitution never intended to confer such power upon
Court and that the exercise of this power by the courts is usurpation on their part.

President Jefferson for one had argued the power of judicial review of the Supreme Court.
According to him the constitution has organized government in three independent branches
on the basis of Separation of Powers; and to give judiciary the power to invalidate acts of
other two branches would only make judiciary supreme over the scheme of the constitution.

On the other hand, Alexander Hamilton in the Federsit Papers argued in favor of the courts
power to judicial review. It is Hamilton’s argument that majority of the constituent
convention members agree upon.

SOURCES OF THE POWER:

There are two sources of power of judicial review in the constitution.

(i.) The constitutional division of powers between Federal and State Government

(ii.) Three organs of State

The 2nd source is the “due process clause” of the 5th & 14th amendments along with Bill of
Rights of the Constitution. The due process clause has immediately enhanced the scope of
Supreme Court’s power of Judicial Review.

POWERS OF JUDICIAL REVIEW & THEIR SCOPE:

The power of judicial review has a wide scope. The powers of judicial review and their
scopes can be discussed as follow:

• REVIEW OF STATE LAWS:

It is the power of Supreme Court to review the laws passed by the State Legislature. If any
law passed violates the provisions of the Constitution or conflicts with the laws passed by
Congress or a treaty negotiated by the President, the Supreme Court has power to declare it
“Null and Void.”

However, the Supreme Court can only review a law if an aggrieved party puts forward the
case. It can not deliver a judgment on its own initiative.

• REVIEW OF FEDERAL LAWS:

It is the power of Supreme Court to review & pass upon the validity of Act of Congress.
According to the members of Courts, their job is to ascertain with or in contravention of the
provisions of the Constitution. The Court has so far held many Congressional Legislations to
be the Constitutional in whole or in part. The only recourse for the Congress, if such an
opinion is handed down, is to try to frame new legislation within the limitations of the
constitution.

• REVIEW OF EXECUTIVE ACTIONS:

The Federal judiciary exercises the power to review acts and actions of the executive also.

One famous example of Court’s action against Presidential order is when President H.S
Truman orders his Secretary of Commerce to seize and operate most of the country’s steel
mills. He sought to justify his orders on ground that it would help obtaining uninterrupted
steel production for vital military purposes, especially since US was fighting Korean War.
However, the orders were challenged in the Court and the Supreme Court held that the
President has exceeded this constitutional powers and accordingly set asides the President’s
order.

SIGNIFICANCE OF JUDICIAL REVIEW:

The merits of the power of judicial review may be summarized as follow:

• ITS EXERCISE HAS PROVED BENEFICIAL:

This power has brought uniformity in United State’s system. It has been the principle
medium of uniform interpretation and application of federal Constitution, federal laws and
treaties throughout the length and breadth of the nation.

It has also helped in ensuring that the constitution and laws of the Federating States are
conformed to the Federal Constitution.

• A USEFUL BENEFACTOR BETWEEN CONTENDING LEGAL INTERESTS:

It is clearly been understood that American constitution system is based on principles of

‘division’ and ‘limitation’ of powers. By exercising the power of Judicial Review, the Supreme
Court ensures that neither the Federal nor the State Government transgress the
Constitutional limits placed upon their respective powers; also it make sure no government
organ exceeds the limits of its constitutional jurisdictions.

By using this power, Supreme Court ensures that neither the Federal Government suffered
from any weakness due to lack of jurisdictions nor did the interest of the
Constitutional/Federating States suffer. It has been a successful balance of interests in an
evolving federal political system.

It is in this sense that the Supreme Court has played the use full role of guardian of the
rights and privileges of the Federal and State governments alike.

• A PROTECTOR OF THE RIGHTS OF THE INDIVIDUAL:

Under the constitution provisions regarding the rights of the individual and the ‘due process’
of the 5th and 14th amendments, the U.S Supreme Court guards the rights and privileges
of the individuals.

Under the Bill of Rights, the Supreme Court has given wide meaning to personal rights,
liberties and properties and guarded them by declaring various governmental laws
unconstitutional and therefore inapplicable. The Court, in its judgments, has indeed had bias
in favor of the private property and freedom of contract. But the bias is justified in keeping
the philosophy of the American Socio-Economic Systems.

• AN INDISPENSABLE REQUISTIE OF A FEDERAL SYSTEM:

It is indispensable requisite of a federal system. This can be justified by the statement of

Justice Holmes that; he could imagine a system in which the Supreme Court had no power
to invalidate a National Status but could not imagine a workable system in which there was
no judicial control over the federating states.

• CONFIDENCE OF PEOPLE:

The U.S judiciary over the years has given American federal system stability, coherence and
flexibility in growth. This has won the confidence of the people in the U.S Supreme Court.

CRITICISM

CRITICISM ON THE BASIS OF FIVE TO FOUR MAJORITY:

Even though Alexander Hamilton’s views regarding judicial review are widely agreed upon,
there are critics following the lead of President Jefferson’s views on this power of Supreme
Court.

A line of criticism against the Supreme Court is that it can declare a law unconstitutional by
5 to 4 majority i.e. 5 judges holding the law constitutional and 4 as unconstitutional. In this
way a single judge can title balance one way or the other. This situation raises two points.

(i.) Should a single justice nullify the action of the President and the Congress, both of
whom are the representatives of the people?

(ii.) How is it that a set of judges come to the conclusion that a law is unconstitutional and
another set thinks that it is not? It would mean that the option that judges form about the
constitutionality of a law is more subjective than objective. On both grounds the powers of
the Court is undemocratic and therefore, ought to be terminated without delay.

COUNTER CRITICISM TO FIVE TO FOUR MAJORITY:

The criticism of 5 to 4 majority is invalid on the following grounds:

In 1st place very few laws of congress have been declared unconstitutional by a close vote
of five to four.
2ndly, no statue of the Congress has been declared unconstitutional by the actions of the
single judge. It would require concurrent opinion of 5 judges at the same time to declare a
law unconstitutional.

3rdly, subjective opinions of the judges regarding what amounts to unconstitutionality do

influence their decisions but the opinion itself is always the result of a sound and scientific
under-standing of law.

CRITICISM REGARDING THE COORDINATE NATURE OF THE POWERS OF THE

THREE ORGANS:

The real issue is not the controversy over the power of the judicial review on what the court
should do when it finds that a law is against the spirit of the constitution, the real issue is
that should the law be declared unconstitutional by Supreme Court when both Congress and
the President consider it be constitutional.

The American constitution calls the three organs; the President, the Congress and the
Supreme Court, as coordinate organs. Yet both the Congress and the President acquire in
the Courts power of Judicial Review. This is highly criticized amongst the followers of
Jefferson’s views towards powers of judicial powers.

ENCOURAGES IRRESPONSIBLE LEGISLATION:

The power of Judicial Review of the Supreme Court is also criticized for reasons of its
political consequence. On the one hand, it encourages irresponsible legislation and on the
other, it makes the attainment of political objectives too remote and uncertain. It makes
people loose active interest in political affairs.

SUPREME COURT AS THE 3RD LEGISLATIVE CHAMBER OF THE CONGRESS:

The Supreme Court under the power of Judicial Review has not only restricted it self to
determining the validity of ‘Acts of Government’ but it has also resort it self to the
examination of the reasonableness of the Act. The court does not only view the process
applied by the government but also the substance of the law regarding the action.

The effect of this has made Supreme Court a 3rd chamber of the Congress, sitting in
judgment over what the other two chambers did.

JUDGES ARE CONSERVATIVE FOLKS:

It is also believed that judges are mostly conservative, supporting the older moral and
ethics of the society over the newer views of people and government. Hence, they may pose
as a challenge to a law which they regard as immoral just on their own ideologies.

CONCLUSION:

In conclusion one can say that the power of Judicial Review will continue to be criticized
when ever a political conventions law is declared void. However, in a liberal democratic
system that U.S follows it is virtually impossible to take away power of Judicial Review from
the Supreme Court.
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