Constitutional Law

Download A Doubtful and Perilous Experiment: Advisory Opinions, State by Mel A. Topf PDF

By Mel A. Topf

In A uncertain and dangerous scan: Advisory critiques, kingdom Constitutions, and Judicial Supremacy, writer Mel A. Topf offers readers with a complete therapy of the background, thought, jurisprudence and controversies when it comes to country preferrred court docket advisory opinions.

A uncertain and threatening Experiment is the single finished therapy of the background and controversies, the legislations and theories approximately nation ideally suited court docket advisory critiques. it is a major zone of country constitutional legislation that has no parallel in federal legislations (which bars advisory evaluations from federal courts). notwithstanding simply ten states have followed such advisory critiques (many others have debated yet rejected them), they've been implicated in significant concerns relating to American judicial strength. The ebook explains the-so a long way unexplained-first visual appeal of advisory authority in 1780, and tackle the chronic air of mystery of illegitimacy that has continuously shadowed this authority. The common assaults at the legitimacy of advisory evaluations were brought on via their conflict with easy doctrines of our felony procedure, together with separation of powers, due approach, judicial overview, judicial independence, and judicial supremacy.

A uncertain and threatening Experiment shows how legislations of kingdom very best court docket advisory critiques in reality arose in accordance with the assaults, leading to an complex jurisprudence of advisory reviews centering on a awesome yet now not completely profitable try to justify while the justices will suggest and after they won't. The booklet tells the tale of makes an attempt to shield advisory authority, together with a number of makes an attempt to amend the U.S. structure to require the superb courtroom to concerns them. It tells the tale additionally of the uneasy relation among advisory critiques and judicial evaluate in addition to the growth of judicial strength.

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Extra resources for A Doubtful and Perilous Experiment: Advisory Opinions, State Constitutions, and Judicial Supremacy

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119 “The judges of the Supreme Court shall give their opinion upon important questions of constitutional law, and upon solemn occasions, when required by the governor, the senate, or the house of representatives; This Peculiar Obligation } 21 which would eventually become the practice for all the advisory opinion states. 121 FLORIDA (1868) Florida like Missouri introduced an advisory opinion clause in its Reconstruction-era constitution, though unlike Missouri it retains the clause, much modified, today.

92 BRENNAN, PLURAL OFFICE-HOLDING IN MASSACHUSETTS, 144–45. See JOURNAL OF THE CONSTITUTIONAL CONVENTION, 81. 93 JOURNAL OF THE CONSTITUTIONAL CONVENTION, 138. 94 Id. at 163–66. 95 Plural office holding was so deeply distrusted and so much in the foreground of public debate as to render suspect those justices comprising a purportedly independent judiciary while holding the second, extrajudicial “office” of advisors at the call of both legislature and executive. An advisory opinion clause constitutionally guaranteed the preservation of a long-accepted practice while protecting the justices from damage to their authority and prestige by the taint of accusation of plural office holding.

Fla. const. (1885), art. 4, sec. 13. 124 See ELLINGWOOD, DEPARTMENTAL COOPERATION, 47–48. 125 Fla. const. (1968), art. IV, sec. 1(c). 126 R. K. -KENT L. REV. 141, 145 (1952). 127 It rendered seventeen advisory opinions in 1886 alone, even though the clause took effect only in November of that year. By early 1889, by which time the court imposed a full set of restrictions on advising, the court had rendered thirty-three advisory opinions, a number equal to the total of those rendered by all the other advisory opinion states from the beginning to 1889.

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