How Did Judicial Review Strengthen the Judicial Branch

National Paralegal College

Judicial Review

by Stephen Haas

Overview

Judicial review is the ability of the courts to declare that acts of the other branches of authorities are unconstitutional, and thus unenforceable. For case if Congress were to pass a law banning newspapers from printing information nigh certain political matters, courts would have the say-so to rule that this constabulary violates the Offset Amendment, and is therefore unconstitutional. State courts likewise have the power to strike down their own state's laws based on the state or federal constitutions.

Today, we accept judicial review for granted. In fact, it is i of the master characteristics of government in the The states. On an almost daily basis, courtroom decisions come downwards from around the country striking down state and federal rules as being unconstitutional. Some of the topics of these laws in recent times include same sex activity wedlock bans, voter identification laws, gun restrictions, regime surveillance programs and restrictions on abortion.

Other countries have too 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 speech 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 European Union the power of judicial review. The power of judicial review is also afforded to the courts of Canada, Nihon, India and other countries. Clearly, the world tendency is in favor of giving courts the ability to review the acts of the other branches of regime.

Even so, information technology was non e'er so. In fact, the idea that the courts have the power to strike down laws duly passed by the legislature is non much older than is the United States. In the civil law system, judges are seen as those who use the police force, with no ability to create (or destroy) legal principles. In the (British) common law organization, on which American law is based, judges are seen as sources of police, capable of creating new legal principles, and too capable of rejecting legal principles that are no longer valid. Still, as Britain has no Constitution, the principle that a court could strike down a constabulary as being unconstitutional was not relevant in Britain. Moreover, fifty-fifty to this solar day, Great britain has an attachment to the idea of legislative supremacy. Therefore, judges in the United kingdom of great britain and northern ireland practice 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 not ascend from it in strength until a century later.

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

If information technology exist said that the legislative body are themselves the ramble 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 be the natural presumption, where it is non to be collected from whatsoever particular provisions in the Constitution. It is not otherwise to exist 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 body betwixt the people and the legislature, in social club, among other things, to keep the latter inside the limits assigned to their authorization

Hamilton further opined that:

A constitution is, in fact, and must be regarded by the judges, as a key police. It therefore belongs to them to ascertain its meaning, as well as the pregnant of whatsoever particular act proceeding from the legislative trunk. If there should happen to be an irreconcilable variance between the ii, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute… [W]hither 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 be governed by the latter rather than the former.

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

Whenever a detail statute contravenes the Constitution, information technology volition exist the duty of the judicial tribunals to adhere to the latter and disregard the former.

The Marbury Decision

In spite of Hamilton'south back up of the concept, the power of judicial review was not written into the Us Constitution. Article III of the Constitution, in granting power to the judiciary, extends judicial power to diverse types of cases (such every bit those arising under federal law), simply makes no comment as to whether a legislative or executive activeness could be struck down. Instead, the American precedent for judicial review comes from the Supreme Court itself, in the landmark determination 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 outset President who was non a member of the Federalist party. He wanted to purge Federalists from the judiciary past 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 committee had not yet been delivered when Jefferson was sworn in and Secretarial assistant 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 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 Principal Justice John Marshall worried that a directly conflict betwixt the Courtroom and newly elected President Jefferson could take destabilizing consequences for the yet young and experimental government. Nevertheless, Marshall could not very well dominion that the commissions ought not to be delivered when it was apparent to most that they were proper.

Instead, Marshall and the Court decided the case on procedural grounds. The unabridged reason the instance was in the Supreme Court in the commencement place was that the Judiciary Act of 1789 (Section 13) allowed the Court the power to issue writs of mandamus, such as the one being sought.

However, Article 3, 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 be a Party, the Supreme Courtroom shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Courtroom shall take appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations equally the Congress shall make.

In other words, the Supreme Court can just handle cases initially brought in the Supreme Court when those cases affect ambassadors, strange ministers or consuls and when a state is a party. Otherwise, yous can appeal your case to the Supreme Court, but y'all cannot bring information technology there in the first instance. Every bit Marbury was non an ambassador, foreign minister or consul and a country was not a party to the example, the Constitution did non allow the Supreme Courtroom to claim original jurisdiction over the instance. Therefore, Marshall and the Court ruled, whether Jefferson and Madison acted properly in denying Marbury'south commission cannot be decided by the Courtroom. The case had to be dismissed since the Court had no jurisdiction over the instance. The Judiciary Act that immune the Courtroom to issue a writ in this case was unconstitutional and therefore void.

While the result favored Jefferson (Marbury never did become a federal judge), the case is remembered for the last indicate. It was the start time that a court of the Usa had struck down a statute as being unconstitutional.

Expansion After Marbury

Since Marbury, the Supreme Courtroom has greatly expanded the ability of judicial review. In Martin v. Hunter's Lessee, 14 U.S. 304 (1816), the Court ruled that it may review land court civil cases, if they arise under federal or constitutional law. A few years later, it determined the same for state 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 state action, executive, judicial or legislative, if it deems such to be unconstitutional. Cooper v. Aaron, 358 U.South. one (1958). Today, in that location 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: Bear on

It is difficult to overstate the result that Marbury and its progeny have had on the American legal system. A comprehensive list of of import cases that have struck down federal or country statutes would hands reach four digits. But a recap of some of the most important historical Court decisions should serve to demonstrate the touch of judicial review.

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

In Gideon v. Wainwright, 372 U.Southward. 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 not beget their own counsel.

In Loving 5. Virginia, 388 U.S. 1 (1967), the Supreme Court struck downward a Virginia statute that prohibited interracial wedlock, as well on equal protection grounds.

In Brandenburg 5. Ohio, 395 U.Due south. 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 engage in imminent lawless action.

In Furman v. Georgia, 408 U.Southward. 238 (1972), the Supreme Courtroom temporarily halted the death penalty in the United States by ruling that state death sentence statutes were non applied consistently or fairly plenty to pass muster under the Eighth Amendment.

In Roe five. Wade, 410 U.S. 113 (1973), the Supreme Court struck downwards state laws that fabricated abortion illegal. Though Roe and many after cases take walked a tight line in determining exactly how far the correct to choose an abortion extends, the basic idea that the right to cull an abortion is protected as part of the right to privacy yet stands as the police of the state.

In Buckley five. Valeo, 424 U.Due south. 1 (1976), the Supreme Court struck down spending limits on individuals or groups who wished to use their own money to promote a political candidate or message (though it upheld limitations on how much could be contributed direct to a campaign) on Showtime Amendment grounds.

In Regents of the University of California v. Bakke, 438 U.South. 265 (1978), the Supreme Court struck downwards sure types of race-based preferences in state higher admissions every bit violating the equal protection clause.

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

In Citizens United v. Federal Ballot Commission, 558 U.S. 310 (2010), the Supreme Court struck downward a federal election law that restricted spending on ballot advertisement past corporations and other associations.

National Federation of Independent Business 5. Sebelius (2012) (the "Obamacare" decision) was famous for upholding most of the Patient Protection and Affordable Care Act. Withal, it also struck down an element of that law 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 have been possible without judicial review. In every case (and countless others), the Court used its ability of judicial review to declare that an deed by a federal or state regime was zip and void because it contradicted a constitutional provision. It is this power that truly makes the courts a co-equal co-operative of regime 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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