NCJ Number
117453
Date Published
1988
Length
214 pages
Annotation
This analysis of judicial power in the United States concludes that the current state of judicial activism that is prompting various efforts to curb the Federal judiciary is the result of Congress's failure to meet its responsibilities rather than of judicial usurpation of powers.
Abstract
The analysis examines the logic underlying the written Constitution and its inherent theory of limited government, emphasizing that the basic premises of democratic government conflict with government by the judiciary. The discussion notes that Congress is legitimately empowered to pass whatever legislation it thinks necessary and proper for regulating the judicial process. This legitimacy results from the theoretical design and political principles of the Constitution rather than from public outrage against particular judicial decisions. However, Congress has historically tended to shirk its constitutional duty to organize and oversee the judicial process. As a result, whenever judicial power is exercised in ways that are politically unpopular, Congress overreacts and tries to remove or curtail major areas of jurisdiction from the scrutiny of Federal courts. Instead of this approach, Congress should restructure the procedures of the Federal courts, including standing, class action, joinder, declaratory judgments, and equitable relief. This approach would effectively and properly curb judicial excesses without undermining the essential and constitutionally necessary function of the Federal judiciary. Footnotes, index, and case index. (Publisher summary modified)