How Does Judicial Review Empowers the Supreme Court
Judicial Review
by Stephen Haas
Overview
Judicial review is the power 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 sure political matters, courts would have the authority to dominion that this law violates the First Subpoena, and is therefore unconstitutional. Land courts besides have the power to strike downwardly their own state's laws based on the state or federal constitutions.
Today, nosotros accept judicial review for granted. In fact, it is one of the main characteristics of government in the United States. On an almost daily footing, court decisions come downward from around the land hit downwardly land and federal rules equally existence unconstitutional. Some of the topics of these laws in recent times include same sex marriage bans, voter identification laws, gun restrictions, authorities surveillance programs and restrictions on abortion.
Other countries have as well gotten in on the concept of judicial review. A Romanian court recently ruled that a law granting immunity to lawmakers and banning certain types of oral communication against public officials was unconstitutional. Greek courts accept ruled that certain wage cuts for public employees are unconstitutional. The legal system of the European Matrimony specifically gives the Court of Justice of the European union the ability of judicial review. The ability of judicial review is also afforded to the courts of Canada, Japan, Bharat and other countries. Conspicuously, the globe trend is in favor of giving courts the power to review the acts of the other branches of regime.
However, it was non always so. In fact, the idea that the courts have the ability to strike down laws duly passed by the legislature is non much older than is the United States. In the civil police force system, judges are seen as those who employ the law, with no power to create (or destroy) legal principles. In the (British) mutual constabulary system, on which American law is based, judges are seen every bit sources of law, capable of creating new legal principles, and likewise capable of rejecting legal principles that are no longer valid. Withal, as Great britain has no Constitution, the principle that a court could strike downwards a law equally being unconstitutional was not relevant in Great britain. Moreover, even to this mean solar day, Britain has an zipper to the thought of legislative supremacy. Therefore, judges in the United Kingdom practice non have the power to strike downwardly 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 not arise from it in strength until a century afterwards.
The principle of judicial review appeared in Federalist Newspaper #78, authored by Alexander Hamilton. Hamilton first disposed of the idea 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 ain powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is non to be collected 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. Information technology is far more than rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in guild, among 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 by the judges, every bit a fundamental constabulary. It therefore belongs to them to ascertain its meaning, too as the significant of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between 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… [West]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 by the latter rather than the quondam.
He then came out and explicitly argued for the power of judicial review:
Whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and condone the sometime.
The Marbury Conclusion
In spite of Hamilton'south support of the concept, the power of judicial review was not written into the United States Constitution. Article III of the Constitution, in granting ability to the judiciary, extends judicial power to various types of cases (such as those arising under federal law), but makes no comment as to whether a legislative or executive action could be struck down. Instead, the American precedent for judicial review comes from the Supreme Court itself, in the landmark decision of Marbury five. Madison, five U.S. 137 (1803).
The story of Marbury is itself a fascinating written report of political maneuvering. When Thomas Jefferson was elected as 3rd President in a victory over John Adams, he was the starting time President who was non a 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 last hours in office, Adams appointed several federal judges, including William Marbury. The commission had not withal been delivered when Jefferson was sworn in and Secretary of State 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 gild to compel Madison to deliver the commissions duly created past Adams while he was President.
While information technology was adequately credible to all that the committee was perfectly valid and should have been delivered, Supreme Court Main Justice John Marshall worried that a directly disharmonize between the Court and newly elected President Jefferson could take destabilizing consequences for the withal young and experimental authorities. Nevertheless, Marshall could not very well rule that the commissions ought non to exist delivered when information technology was credible to well-nigh that they were proper.
Instead, Marshall and the Courtroom decided the case on procedural grounds. The entire reason the instance was in the Supreme Court in the first place was that the Judiciary Act of 1789 (Department 13) immune the Courtroom the power to consequence writs of mandamus, such as the one being sought.
However, Article III, Section 2, Clause two of the Constitution says:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Courtroom shall have original Jurisdiction. In all the other Cases earlier mentioned, the Supreme Court shall have appellate Jurisdiction, both equally to Police force and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
In other words, the Supreme Courtroom can merely handle cases initially brought in the Supreme Court when those cases touch on ambassadors, foreign ministers or consuls and when a state is a party. Otherwise, you can appeal your case to the Supreme Court, but you cannot bring information technology at that place in the showtime instance. As Marbury was non an ambassador, foreign minister or delegate and a state was not a party to the case, the Constitution did not allow the Supreme Court to claim original jurisdiction over the case. Therefore, Marshall and the Court ruled, whether Jefferson and Madison acted properly in denying Marbury's committee cannot be decided by the Court. The case had to be dismissed since the Courtroom had no jurisdiction over the case. The Judiciary Act that allowed the Court to issue a writ in this case was unconstitutional and therefore void.
While the result favored Jefferson (Marbury never did become a federal estimate), the case is remembered for the last betoken. It was the first fourth dimension that a court of the United States had struck down a statute equally being unconstitutional.
Expansion After Marbury
Since Marbury, the Supreme Court has greatly expanded the power of judicial review. In Martin five. Hunter'south Lessee, fourteen U.South. 304 (1816), the Court ruled that it may review state court civil cases, if they arise under federal or constitutional law. A few years later, information technology determined the aforementioned for land court criminal cases. Cohens v. Virginia, 19 U.S. 264 (1821). In 1958, the Supreme Court extended judicial review to mean that the Supreme Court was empowered to overrule any land activity, executive, judicial or legislative, if it deems such to be unconstitutional. Cooper 5. Aaron, 358 U.S. one (1958). Today, there is no serious opposition to the principle that all courts, non simply the Supreme Court (and indeed, not simply federal courts) are empowered to strike down legislation or executive actions that are inconsistent with the federal or applicable country Constitution.
Judicial Review: Impact
Information technology is hard to overstate the effect that Marbury and its progeny accept had on the American legal system. A comprehensive listing of important cases that have struck down federal or state statutes would hands reach four digits. But a recap of some of the almost important historical Court decisions should serve to demonstrate the impact of judicial review.
In Brown v. Board of Education, 347 U.S. 483 (1954), the Supreme Courtroom struck downwardly 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 v. Wainwright, 372 U.S. 335 (1963), the Supreme Court forced states to provide counsel in criminal cases for indigent defendants who were beingness tried for commission of a felony and could not afford their ain counsel.
In Loving v. Virginia, 388 U.S. ane (1967), the Supreme Court struck down a Virginia statute that prohibited interracial marriage, as well on equal protection grounds.
In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme Court ruled that country criminal laws that punished people for incitement could not be applied unless the spoken communication in question was intended to and likely to, cause people to appoint in imminent lawless action.
In Furman 5. Georgia, 408 U.Due south. 238 (1972), the Supreme Court temporarily halted the expiry penalty in the United states by ruling that country death penalty statutes were non practical consistently or adequately plenty to pass muster under the 8th Amendment.
In Roe v. Wade, 410 U.South. 113 (1973), the Supreme Courtroom struck down state laws that made abortion illegal. Though Roe and many afterwards cases take walked a tight line in determining exactly how far the right to choose an abortion extends, the basic idea that the right to choose an abortion is protected as office of the right to privacy still stands as the constabulary of the state.
In Buckley five. Valeo, 424 U.S. 1 (1976), the Supreme Courtroom struck down spending limits on individuals or groups who wished to use their ain money to promote a political candidate or message (though it upheld limitations on how much could be contributed direct to a campaign) on First Amendment grounds.
In Regents of the Academy of California 5. Bakke, 438 U.S. 265 (1978), the Supreme Court struck down certain types of race-based preferences in state college admissions as violating the equal protection clause.
In Lawrence v. Texas, 539 U.Due south. 558 (2003), the Supreme Court struck down sodomy laws in fourteen states, making same-sex sexual activity legal in every U.S. state.
In Citizens United five. Federal Election Committee, 558 U.S. 310 (2010), the Supreme Courtroom struck down a federal election police that restricted spending on election advert by corporations and other associations.
National Federation of Contained Business v. Sebelius (2012) (the "Obamacare" decision) was famous for upholding most of the Patient Protection and Affordable Care Act. Even so, it also struck down an element of that law that threatened to withhold Medicaid funding from states that did not cooperate with the constabulary, on the grounds that this was an unconstitutional violation of state sovereignty.
Though some of these decisions remain controversial, none of these decisions would take been possible without judicial review. In every case (and countless others), the Courtroom used its power of judicial review to declare that an act past a federal or state government was null and void because it contradicted a constitutional provision. It is this ability 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 against potential intrusions by those other branches.
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