THE EXECUTIVE, LEGISLATIVE AND JUDICIAL BRANCHES OF THE U.S. GOVERNMENT.

Maravilha. Mais uma colaboração ao blog. Interessante texto do colega Vagney Palha de Miranda. Advogado da banca DM&Palha Advogados Associados (www.ddmepalhaadvogados.adv.br). 
Trata-se de artigo sobre a tripartição de poderes que, como no Brasil, há nos Estados Unidos da América. Está em inglês porque foi enviado como crédito de um curso que ele realizou pela Universidade de Yale, de New Heaven, Connecticut, EUA.
So, enjoy it.

The Framers did note consider the Judiciary the weakest of the three branches. On the contrary, the Judicial branch has a power to invalidate legislation or executive actions which conflict with the Constitution.

Moreover, the judiciary is logically and systematically established in the U. S. Constitution.

Observe that “the judicial branch interprets the meaning of laws, applies laws to individual cases, and decides if laws violate the Constitution”. (https://www.usa.gov/branches-of-government)

Thereby, the judicial branch is a very important power of the U.S Government, whose decisions can affect all people across the United States.

The power of the Supreme Court comes from the article III.

The article III, §1º, provides that “the judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

The Framers wanted only to divide the power of the United States Government into three branch or parts and established a system that check and balance each other so that no one of them has too much power.

The legislative branch, for instance, can check and balance both the executive branch and the judicial branch.

The complex role of the Supreme Court – judicial branch – becomes more important because of the protection of individuals against the state, the nation and the will of the majority – “the rights of any minority against majority tyranny”.

Despite of the members of the legislative power and the Executive branch are elected directly by the people and the judicial power provides indirectly of the people, their functions has the same relevance to the Constitutional State, which is under de systems rules of law.

Therefore, they are coequals. 

The judicial branch has competence and functions given by the U.S. Constitution to interpret all laws and invalidate any unconstitutional law. In fact, judicial branch can invalidate any states acts which conflict with the Constitution.

The judicial review was confirmed until 1803, when it was invoked by Chief Justice John Marshall in Marbury v. Madison

In 1803, the Chief Justice John Marshall established the principle of judicial review, that consists of the judicial power to invalidate either any unconstitutional law or any states acts which conflict with the Constitution.

Chief justice of the U.S. Supreme Court, John Marshall, based on the fact that U.S. Constitution is the supreme law of the land established that courts in general and the Supreme Court in particular has the power to invalidate either any unconstitutional law or any states acts which conflict with the Constitution.

In the case Miranda v. Arizona, that the Supreme Court declared the police acts unconstitutional, it had profound impact across the United States.

However, the US Constitution is the fundamental and primary source of constitutional law. Moreover, the judicial branch and its judiciary system should respect what the Constitution literally says.

Notice that the laws are created by the senate and house of representatives.  Furthermore, the president of the United States can veto bills voted by Congress. Nevertheless, the Supreme Court can invalidate them always which, in the Court’s considered judgment, conflict with the Constitution.

Thereby, the U.S Constitution in its article I, section 7, says that “every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States”

Then, accordance with the article I, section 7,  “If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it”.

In the United States, specially, whose Constitution is too concise, it is prudent to give judges this increased power in order to resolve complex legal issues.

For instance, the second amendment says that “a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed” must be construed to prevent ordinary people in peacetime to purchase weapons.

Notice that the constitutional interpretation can not be dissociated from social reality, political objectives, economic and cultural issues.

The interpretation, therefore, is a circular process of seeking coherence and integrity of the constitutional right.

So, The Framers created the judicial branch, legislative branch and the executive branch and divided the power within these three branch of federal government in order to one branch controls the others - check and balance.