The Supreme Court And Government By The People

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The Supreme Court And Government By The People

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 ...

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