The Concept of Judicial Review Was Based on the Principle That

National Paralegal College

Judicial Review

past Stephen Haas

Overview

Judicial review is the power of the courts to declare that acts of the other branches of regime are unconstitutional, and thus unenforceable. For case if Congress were to pass a law banning newspapers from printing data virtually certain political matters, courts would have the dominance to rule that this police violates the Start Subpoena, and is therefore unconstitutional. State courts also accept the power to strike downwards their own state'southward laws based on the state or federal constitutions.

Today, we have judicial review for granted. In fact, it is ane of the primary characteristics of government in the United States. On an almost daily basis, court decisions come down from effectually the country striking down state and federal rules as existence unconstitutional. Some of the topics of these laws in recent times include same sex marriage bans, voter identification laws, gun restrictions, government surveillance programs and restrictions on abortion.

Other countries have likewise gotten in on the concept of judicial review. A Romanaian court recently ruled that a law granting immunity to lawmakers and banning certain types of oral communication against public officials was unconstitutional. Greek courts have ruled that certain wage cuts for public employees are unconstitutional. The legal system of the European union specifically gives the Court of Justice of the Eu the ability of judicial review. The power of judicial review is also afforded to the courts of Canada, Nippon, Republic of india and other countries. Clearly, the world trend is in favor of giving courts the power to review the acts of the other branches of regime.

Withal, it was non e'er so. In fact, the idea that the courts take the ability to strike down laws duly passed past the legislature is non much older than is the United states. In the civil law system, judges are seen every bit those who utilize the law, with no power to create (or destroy) legal principles. In the (British) common law system, on which American constabulary is based, judges are seen equally sources of police, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid. However, every bit Britain has no Constitution, the principle that a court could strike down a constabulary as being unconstitutional was not relevant in Uk. Moreover, even to this solar day, Britain has an zipper to the idea of legislative supremacy. Therefore, judges in the United Kingdom do non have the power to strike down legislation.

History

The principle of judicial review has its roots in the principle of separation of powers. Separation of powers was introduced by Baron de Montesquieu in the 17th century, merely judicial review did non arise from it in force until a century later.

The principle of judicial review appeared in Federalist Newspaper #78, authored by Alexander Hamilton. Hamilton first disposed of the thought that legislatures should be left to enforce the Constitution upon themselves:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot exist the natural presumption, where it is non to be collected from whatever item provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. Information technology is far more rational to suppose, that the courts were designed to be an intermediate trunk between the people and the legislature, in order, among other things, to keep the latter inside the limits assigned to their authority

Hamilton further opined that:

A constitution is, in fact, and must be regarded by the judges, every bit a key constabulary. It therefore belongs to them to ascertain its significant, as well as the meaning of whatsoever particular human activity proceeding from the legislative body. If there should happen to be an irreconcilable variance between the 2, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to exist preferred to the statute… [W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed past the latter rather than the former.

He then came out and explicitly argued for the ability of judicial review:

Whenever a item statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

The Marbury Determination

In spite of Hamilton's support of the concept, the power of judicial review was non written into the U.s. Constitution. Article Three of the Constitution, in granting ability to the judiciary, extends judicial power to various types of cases (such as those arising nether federal law), but makes no comment every bit to whether a legislative or executive action could be struck downwardly. Instead, the American precedent for judicial review comes from the Supreme Court itself, in the landmark decision of Marbury v. Madison, 5 U.S. 137 (1803).

The story of Marbury is itself a fascinating written report of political maneuvering. When Thomas Jefferson was elected as third President in a victory over John Adams, he was the offset President who was not a fellow member of the Federalist party. He wanted to purge Federalists from the judiciary by appointing non-Federalists to the bench at every opportunity. The Federalist judges were to then fade away by attrition.

During his concluding hours in office, Adams appointed several federal judges, including William Marbury. The commission had not yet been delivered when Jefferson was sworn in and Secretary of Land James Madison refused to evangelize the commissions to the judicial appointments of Adams. Marbury and others sued in the Supreme Court, seeking a writ of mandamus: an order to compel Madison to deliver the commissions duly created by Adams while he was President.

While it was fairly apparent to all that the commission was perfectly valid and should have been delivered, Supreme Court Main Justice John Marshall worried that a direct disharmonize between the Courtroom and newly elected President Jefferson could have destabilizing consequences for the yet young and experimental regime. Withal, Marshall could not very well rule that the commissions ought not to be delivered when it was apparent to virtually that they were proper.

Instead, Marshall and the Court decided the instance on procedural grounds. The unabridged reason the instance was in the Supreme Court in the first place was that the Judiciary Human activity of 1789 (Department thirteen) immune the Court the power to issue writs of mandamus, such as the one existence sought.

However, Commodity Iii, Section 2, Clause 2 of the Constitution says:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall exist a Party, the Supreme Court shall have original Jurisdiction. In all the other Cases earlier mentioned, the Supreme Court shall take appellate Jurisdiction, both as to Police force and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

In other words, the Supreme Court can only handle cases initially brought in the Supreme Court when those cases affect ambassadors, foreign ministers or consuls and when a state is a party. Otherwise, you can appeal your instance to the Supreme Courtroom, only you cannot bring it in that location in the first instance. Equally Marbury was not an ambassador, foreign minister or consul and a state was not a party to the instance, the Constitution did not permit the Supreme Court to claim original jurisdiction over the example. Therefore, Marshall and the Court ruled, whether Jefferson and Madison acted properly in denying Marbury'due south commission cannot be decided past the Court. The case had to exist dismissed since the Court had no jurisdiction over the case. The Judiciary Act that allowed the Courtroom to issue a writ in this case was unconstitutional and therefore void.

While the effect favored Jefferson (Marbury never did become a federal judge), the case is remembered for the last point. It was the first fourth dimension that a court of the U.s. had struck down a statute as being unconstitutional.

Expansion After Marbury

Since Marbury, the Supreme Court has greatly expanded the power of judicial review. In Martin v. Hunter's Lessee, xiv U.South. 304 (1816), the Court ruled that it may review state courtroom civil cases, if they ascend under federal or constitutional law. A few years later, it determined the aforementioned for land court criminal cases. Cohens v. Virginia, 19 U.South. 264 (1821). In 1958, the Supreme Court extended judicial review to mean that the Supreme Courtroom was empowered to overrule any state action, executive, judicial or legislative, if it deems such to be unconstitutional. Cooper v. Aaron, 358 U.South. 1 (1958). Today, at that place is no serious opposition to the principle that all courts, not but the Supreme Courtroom (and indeed, not just federal courts) are empowered to strike downward legislation or executive actions that are inconsistent with the federal or applicable state Constitution.

Judicial Review: Bear upon

Information technology is difficult to overstate the outcome that Marbury and its progeny have had on the American legal organization. A comprehensive list of important cases that have struck down federal or state statutes would hands reach iv digits. But a recap of some of the near important historical Court decisions should serve to demonstrate the impact of judicial review.

In Brown 5. Lath of Teaching, 347 U.S. 483 (1954), the Supreme Court struck downward land laws establishing separate public schools for blackness and white students on the grounds that they violated the "equal protection" clause of the Fourteenth Amendment.

In Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court forced states to provide counsel in criminal cases for indigent defendants who were being tried for commission of a felony and could non afford their own counsel.

In Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Courtroom struck down a Virginia statute that prohibited interracial marriage, also on equal protection grounds.

In Brandenburg v. Ohio, 395 U.Southward. 444 (1969), the Supreme Court ruled that state criminal laws that punished people for incitement could not be applied unless the speech in question was intended to and likely to, cause people to appoint in imminent lawless action.

In Furman v. Georgia, 408 U.South. 238 (1972), the Supreme Court temporarily halted the capital punishment in the U.s. by ruling that state death penalty statutes were not applied consistently or adequately enough to laissez passer muster under the Eighth Amendment.

In Roe five. Wade, 410 U.S. 113 (1973), the Supreme Court struck downwards land laws that fabricated abortion illegal. Though Roe and many later cases accept walked a tight line in determining exactly how far the correct to choose an abortion extends, the bones thought that the right to choose an abortion is protected every bit role of the right to privacy nonetheless stands as the law of the land.

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court struck down spending limits on individuals or groups who wished to use their ain money to promote a political candidate or message (though information technology upheld limitations on how much could be contributed directly to a campaign) on Commencement Amendment grounds.

In Regents of the University of California 5. Bakke, 438 U.S. 265 (1978), the Supreme Court struck down sure types of race-based preferences in state college admissions as violating the equal protection clause.

In Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court struck downwards sodomy laws in fourteen states, making aforementioned-sex activity sexual activity legal in every U.S. land.

In Citizens United 5. Federal Election Commission, 558 U.Due south. 310 (2010), the Supreme Courtroom struck down a federal election law that restricted spending on election ad past corporations and other associations.

National Federation of Contained Business 5. Sebelius (2012) (the "Obamacare" decision) was famous for upholding nigh of the Patient Protection and Affordable Intendance Act. Withal, it also struck downward an element of that police force that threatened to withhold Medicaid funding from states that did not cooperate with the police force, on the grounds that this was an unconstitutional violation of state sovereignty.

Though some of these decisions remain controversial, none of these decisions would accept been possible without judicial review. In every instance (and countless others), the Court used its ability of judicial review to declare that an act by a federal or state government was null and void considering it contradicted a constitutional provision. It is this power that truly makes the courts a co-equal branch of government with the executive and legislative branches and allows it to defend the rights of the people confronting potential intrusions by those other branches.

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