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petitioned to the Supreme Court for a writ of mandamus, under the Judiciary
Act, 1789. The Court presided by John Marshall, held the Marbury was entitled
to commission. But it has no authority to grant a writ of mandamus,
compelling delivery, because the provision of the Judiciary Act, 1789, which
empowered the Supreme Court to issue writ of mandamus, was in violation of
the constitution provisions of Article III. So the Act of Congress held violation
of constitution. All the laws contrary to constitution will be abrogated. In USA,
through the week proceedings are held, and on Monday decisions are made.
Constitution has dominating role. State law will be repealed if it is contrary to
federal law. Judiciary is supreme over the both organs. When Supreme Court
legislates the laws or amends the law then it is called judicial review.
In USA public is liberated while government is limitized. US Supreme Court
can review of laws and Acts in the light of constitution. USconstitution in its
Article II says that all the legislature powers are vested to congress, executive
to president, and judiciary to Supreme Court.
Founding fathers made the constitution and divided the powers. No one can
be arbitrary among the organs of government. US constitution is based on
distrust. US president is most powerful of the world and sometime he is
helpless before congress.
Qualifications of the President:
1. He must be born in USA.
2. 14 years resident of USA.
3. 35 years of age.
Conventions:
1.
2.
3.
4.
are dissolved after they cast their vote. How many representatives are
elected for Electoral College? Numbers of members of house of
representative plus senators from that particular state are elected from each
state. Suppose, State of Virginia has its 30 members in house of
representative, and two as senator in senate, it means, representative
from Virginia will be 32. Parties on their tickets nominate candidates for
president. System of Electoral College was adopted due to corruption factor
in older practices where members were free for floor crossing, so that direct
election system was evolved and adopted without making an amendment in
the US constitution, which is very difficult. Also Americans do not want to
make any change in constitution to continue the method of Founder Fathers.
System of Electoral College is convention and not law. Death of president
does not affect the whole system and vice president fills in space.
Powers and Functions of the US President: He has to perform six (6)
functions as follows as per constitution:
1.
2.
3.
4.
5.
6.
Executive powers.
Legislature powers.
Judicial powers.
As head of US Forces.
Foreign affairs powers.
Appointment powers.
approval
is
not
not
answerable
7. No collective responsibility.
7. Strict
collective
responsibility.
Mistake of one ministers is mistake
of all ministers.
are
not 9. Cabinet
necessary.
meetings
are
so
on
Equal
5. Discussion
consents.
of
member
without
6. Remains partial.
6. Remains impartial.
3. President can issue ordinances if senate compels him, for three months.
4. This is the function of president as to when meeting of senate is to be
called, on what day, time meeting will be held.
Check and balance Supreme Court v Senate:
1. Nomination of judges is duty of president, but senate ratifies it.
2. There is no age of retirement. They can voluntarily retire or senate can
impeach them.
3. Senate ratifies nominations but senate cannot remove any judge except
by impeachment.
4. Supreme Court controls both president and legislature. Supreme Court
may declare any law contrary to constitution null & void.
5. If state law is in contrast to federal constitution may be repealed.
6. Judicial review is exclusively right of Supreme Court. Interpretation can
affect president or senates law.
7. President can fix the number of judges. Once a time it was threaten by
president to increase the numbers of judges from 9 to 15, but it was not
happened.
Division of power between Centre and states is made by list of powers. There
is only one list made in USA and all the residuary powers go to states. Federal
list is called express powers and the rest of all is called residuary powers.
In India there are three lists. One for Centre, one for provinces, and one is
concurrent. Residuary powers go to Centre, which make it powerful.
In Pakistan there are two lists, i.e., federal and provincial, and residuary
powers go to provinces. Executive powers are laid down in constitution and
list is not maintained. Any law, which is made by Centre, its executive powers
go to Centre and any law, which is made by states, its executive powers go to
states. Federal disputes are settled in federal Supreme Court and states
affairs are dealt with Supreme Court of states. There is double system in USA.
Citizens have to follow both governments. States assemblies are bicameral
whereas provincial assemblies in Pakistan are unilateral. In USA both
governments collect their revenues. Both enforce their own laws. One officer
performs only one duty and there is no concept of dual duties. Supremacy of
constitution was derived from the case of Marbury v Madison case,
presided by Chief Justice Marshall.
Due process of law means that every law will be made properly, containing
no discrimination, no bias-ness, no injustice etc. Many laws were got repealed
after passing 14th amendment in which words of due process of law were
used. It also means everything must be done with due process of law. It
should also be according to constitution, fair, and reasonable.
Process of impeachment:
Allegations are imposed in House of Representatives.
Committee considers the allegations.
Discussion takes place.
Voting in House of Representatives by 2/3rd majority passed.
Discussion in voting in senate by 2/3rd majority.
Removal of President and taking over by Vice President.
Kinds of fundamental rights in USA Constitution: In ten amendments
following rights are guaranteed.
1. Political Rights.
(a)
Freedom of speech.
(b)
Freedom of movement.
(c)
Freedom of assembly.
2. Religious Rights.
(a)
Profess of religion.
(b)
Change of religion.
(c)
Religious education.
(d)
(e)
(f)
(g)
(h)
3. Economic Rights.
(a)
(b)
(c)
4. Personal Rights.
[1]
(a)
(b)
No double jeopardy.
(c)
(d)
(e)
(f)
(g)
No child labour.
(h)
No illegal detention.
(i)
(j)