1 Explain How Judicial Review Works as a Check Against Congress

Judicial Review

by Stephen Haas

Overview

Judicial review is the ability of the courts to declare that acts of the other branches of government are unconstitutional, and thus unenforceable. For example if Congress were to pass a law banning newspapers from printing information about certain political matters, courts would have the authority to dominion that this law violates the Showtime Amendment, and is therefore unconstitutional. State courts as well have the power to strike down their own state'southward laws based on the state or federal constitutions.

Today, we take judicial review for granted. In fact, information technology is 1 of the main characteristics of regime in the United States. On an almost daily basis, court decisions come up down from around the state hitting downwards state and federal rules as being 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 also gotten in on the concept of judicial review. A Romanian court recently ruled that a law granting amnesty to lawmakers and banning certain types of speech confronting public officials was unconstitutional. Greek courts take ruled that certain wage cuts for public employees are unconstitutional. The legal system of the European Union specifically gives the Courtroom of Justice of the European union the ability of judicial review. The power of judicial review is too afforded to the courts of Canada, Japan, India and other countries. Clearly, the world tendency is in favor of giving courts the power to review the acts of the other branches of government.

However, it was not ever and then. In fact, the idea that the courts have the power to strike downward laws duly passed by the legislature is not much older than is the United States. In the civil police system, judges are seen as those who employ the law, with no power to create (or destroy) legal principles. In the (British) common law organization, on which American law is based, judges are seen as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid. However, as United kingdom has no Constitution, the principle that a court could strike down a law as being unconstitutional was non relevant in United kingdom. Moreover, fifty-fifty to this day, Britain has an attachment to the idea of legislative supremacy. Therefore, judges in the United Kingdom do not accept the ability 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, but judicial review did non ascend from information technology in force until a century later.

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

If it exist said that the legislative torso are themselves the constitutional judges of their ain powers, and that the construction they put upon them is conclusive upon the other departments, it may exist answered, that this cannot be the natural presumption, where it is non to exist nerveless from any particular 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. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in lodge, amongst other things, to keep the latter within the limits assigned to their authority

Hamilton further opined that:

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

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

Whenever a item statute contravenes the Constitution, it volition be the duty of the judicial tribunals to attach 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 not written into the United States Constitution. Commodity Iii of the Constitution, in granting power to the judiciary, extends judicial ability to various types of cases (such as those arising under federal constabulary), but makes no comment as to whether a legislative or executive activeness could be struck downwards. Instead, the American precedent for judicial review comes from the Supreme Court itself, in the landmark determination of Marbury 5. Madison, 5 U.S. 137 (1803).

The story of Marbury is itself a fascinating study of political maneuvering. When Thomas Jefferson was elected every bit third President in a victory over John Adams, he was the starting time President who was not a member of the Federalist political party. He wanted to purge Federalists from the judiciary by appointing non-Federalists to the bench at every opportunity. The Federalist judges were to so fade abroad by attrition.

During his last 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 deliver 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 information technology was adequately credible to all that the commission was perfectly valid and should have been delivered, Supreme Court Chief Justice John Marshall worried that a direct disharmonize between the Court and newly elected President Jefferson could have destabilizing consequences for the nevertheless young and experimental government. Nevertheless, Marshall could non very well rule that the commissions ought not to be delivered when it was apparent to most that they were proper.

Instead, Marshall and the Courtroom decided the case on procedural grounds. The entire reason the case was in the Supreme Courtroom in the get-go place was that the Judiciary Act of 1789 (Section thirteen) allowed the Court the power to issue writs of mandamus, such as the 1 being sought.

However, Article 3, Section 2, Clause ii of the Constitution says:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a Land shall be a Party, the Supreme Court shall accept original Jurisdiction. In all the other Cases earlier mentioned, the Supreme Court shall take appellate Jurisdiction, both as to Constabulary and Fact, with such Exceptions, and under such Regulations equally 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 country is a party. Otherwise, you can appeal your example to the Supreme Courtroom, but you cannot bring it there in the offset example. As Marbury was not an ambassador, foreign minister or consul and a state was not a party to the case, the Constitution did not let the Supreme Court to merits original jurisdiction over the case. Therefore, Marshall and the Court ruled, whether Jefferson and Madison acted properly in denying Marbury's commission cannot exist decided by the Court. The case had to be dismissed since the Court had no jurisdiction over the case. The Judiciary Human action that allowed the Court to issue a writ in this case was unconstitutional and therefore void.

While the result favored Jefferson (Marbury never did go a federal judge), the case is remembered for the last signal. It was the first time that a court of the Us had struck downwardly a statute as being unconstitutional.

Expansion After Marbury

Since Marbury, the Supreme Courtroom has greatly expanded the ability of judicial review. In Martin five. Hunter'due south Lessee, 14 U.Southward. 304 (1816), the Court ruled that it may review state court civil cases, if they arise nether federal or constitutional law. A few years later, it determined the same for state court criminal cases. Cohens five. Virginia, 19 U.S. 264 (1821). In 1958, the Supreme Courtroom extended judicial review to mean that the Supreme Court was empowered to overrule any state action, executive, judicial or legislative, if it deems such to be unconstitutional. Cooper five. Aaron, 358 U.S. ane (1958). Today, there is no serious opposition to the principle that all courts, not just the Supreme Court (and indeed, not just federal courts) are empowered to strike down legislation or executive actions that are inconsistent with the federal or applicable state Constitution.

Judicial Review: Impact

It is difficult to overstate the consequence that Marbury and its progeny have had on the American legal system. A comprehensive list of important cases that have struck down federal or state statutes would easily reach iv digits. But a epitomize of some of the most important historical Courtroom decisions should serve to demonstrate the impact of judicial review.

In Brown v. Board of Education, 347 U.Southward. 483 (1954), the Supreme Court struck down state laws establishing separate public schools for black and white students on the grounds that they violated the "equal protection" clause of the Fourteenth Amendment.

In Gideon 5. Wainwright, 372 U.Due south. 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 beget their own counsel.

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

In Brandenburg 5. Ohio, 395 U.S. 444 (1969), the Supreme Court ruled that state criminal laws that punished people for incitement could non exist applied unless the speech in question was intended to and likely to, cause people to engage in imminent lawless activeness.

In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court temporarily halted the expiry penalty in the The states by ruling that state expiry penalization statutes were not practical consistently or fairly enough to pass muster under the Eighth Subpoena.

In Roe v. Wade, 410 U.South. 113 (1973), the Supreme Court struck down state laws that fabricated abortion illegal. Though Roe and many subsequently cases have walked a tight line in determining exactly how far the right to choose an abortion extends, the basic idea that the correct to choose an abortion is protected as part of the right to privacy yet stands as the law of the land.

In Buckley v. Valeo, 424 U.S. ane (1976), the Supreme Courtroom struck down spending limits on individuals or groups who wished to utilize their ain coin to promote a political candidate or bulletin (though it upheld limitations on how much could be contributed direct to a campaign) on First Amendment grounds.

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

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

In Citizens United 5. Federal Election Committee, 558 U.S. 310 (2010), the Supreme Court struck down a federal ballot constabulary that restricted spending on election advertising by corporations and other associations.

National Federation of Independent Business v. Sebelius (2012) (the "Obamacare" decision) was famous for upholding most of the Patient Protection and Affordable Intendance Act. However, it also struck downwards an element of that law that threatened to withhold Medicaid funding from states that did not cooperate with the law, on the grounds that this was an unconstitutional violation of country sovereignty.

Though some of these decisions remain controversial, none of these decisions would have been possible without judicial review. In every case (and countless others), the Court used its power of judicial review to declare that an human action past a federal or state regime was aught and void considering it contradicted a ramble provision. It is this power that truly makes the courts a co-equal co-operative of government with the executive and legislative branches and allows information technology to defend the rights of the people against potential intrusions by those other branches.

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