This Is the Power of a Court to Review a Law

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 press information nearly certain political matters, courts would have the authorization to rule that this police force violates the Starting time Amendment, and is therefore unconstitutional. Country courts also have the power to strike downwardly their ain state's 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 government in the United states of america. On an almost daily footing, court decisions come up downwards from effectually the country striking down land and federal rules as beingness 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 immunity to lawmakers and banning sure types of speech communication against public officials was unconstitutional. Greek courts have ruled that sure wage cuts for public employees are unconstitutional. The legal system of the Eu specifically gives the Court of Justice of the Eu the power of judicial review. The power of judicial review is also afforded to the courts of Canada, Nippon, 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 government.

However, it was non always then. In fact, the idea that the courts have the power to strike down laws duly passed by the legislature is not much older than is the United States. In the ceremonious police system, judges are seen as those who apply the law, with no power to create (or destroy) legal principles. In the (British) common police system, on which American law is based, judges are seen as sources of law, capable of creating new legal principles, and too capable of rejecting legal principles that are no longer valid. However, equally Britain has no Constitution, the principle that a courtroom could strike downward a law every bit being unconstitutional was not relevant in Britain. Moreover, fifty-fifty to this day, Britain has an attachment to the thought of legislative supremacy. Therefore, judges in the United Kingdom do not have the power to strike downward 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 information technology in force until a century later.

The principle of judicial review appeared in Federalist Paper #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 exist answered, that this cannot be the natural presumption, where it is not to exist nerveless from whatsoever particular provisions in the Constitution. It is non otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their volition to that of their constituents. It 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 past the judges, equally a fundamental law. It therefore belongs to them to ascertain its meaning, too every bit the pregnant of whatever particular act proceeding from the legislative torso. 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… [Westward]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 exist governed by the latter rather than the former.

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

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

The Marbury Conclusion

In spite of Hamilton's support of the concept, the ability of judicial review was non written into the United states of america 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, 5 U.Due south. 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 first President who was not a member of the Federalist political 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 compunction.

During his last hours in office, Adams appointed several federal judges, including William Marbury. The commission had non yet 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 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 accept 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 yet immature 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 entire reason the case was in the Supreme Court in the first place was that the Judiciary Act of 1789 (Section 13) allowed the Court the power to issue writs of mandamus, such equally the one existence sought.

Nonetheless, Article 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 be a Political party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall accept appellate Jurisdiction, both every bit to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

In other words, the Supreme Court tin can only handle cases initially brought in the Supreme Court when those cases bear upon ambassadors, strange ministers or consuls and when a state is a party. Otherwise, y'all can appeal your example to the Supreme Court, but yous cannot bring information technology there in the offset case. 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 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 Deed that allowed the Court to issue a writ in this instance was unconstitutional and therefore void.

While the event favored Jefferson (Marbury never did become a federal gauge), the instance is remembered for the last point. It was the get-go time that a court of the United States had struck down a statute every bit being unconstitutional.

Expansion Subsequently Marbury

Since Marbury, the Supreme Court has greatly expanded the power of judicial review. In Martin five. Hunter's Lessee, xiv U.S. 304 (1816), the Court ruled that information technology may review state court civil cases, if they ascend under federal or constitutional police. A few years after, it determined the aforementioned for land court criminal cases. Cohens 5. Virginia, 19 U.S. 264 (1821). In 1958, the Supreme Court extended judicial review to hateful that the Supreme Court was empowered to overrule whatever land activeness, executive, judicial or legislative, if it deems such to be unconstitutional. Cooper 5. Aaron, 358 U.S. i (1958). Today, there is no serious opposition to the principle that all courts, non merely the Supreme Court (and indeed, not only federal courts) are empowered to strike down legislation or executive actions that are inconsistent with the federal or applicable state Constitution.

Judicial Review: Touch

Information technology is difficult to overstate the effect that Marbury and its progeny have had on the American legal organization. A comprehensive listing of of import cases that have struck down federal or state statutes would easily reach four digits. But a recap of some of the most of import historical Courtroom decisions should serve to demonstrate the touch of judicial review.

In Brown v. Board of Education, 347 U.S. 483 (1954), the Supreme Courtroom struck down state laws establishing carve up 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 Courtroom forced states to provide counsel in criminal cases for indigent defendants who were beingness tried for committee of a felony and could not beget their own counsel.

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

In Brandenburg five. Ohio, 395 U.South. 444 (1969), the Supreme Court ruled that state criminal laws that punished people for incitement could non be applied unless the speech communication 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 Court temporarily halted the death punishment in the United States by ruling that state death penalty statutes were not applied consistently or fairly enough to pass muster under the Eighth Subpoena.

In Roe five. Wade, 410 U.S. 113 (1973), the Supreme Court struck downwardly country laws that fabricated abortion illegal. Though Roe and many later cases accept 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 ballgame is protected as part of the right to privacy still stands as the law of the country.

In Buckley 5. Valeo, 424 U.S. 1 (1976), the Supreme Courtroom struck downwards spending limits on individuals or groups who wished to utilize their ain money to promote a political candidate or message (though it upheld limitations on how much could be contributed directly to a campaign) on Beginning Amendment grounds.

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

In Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Courtroom struck downwards sodomy laws in 14 states, making aforementioned-sex sexual activity legal in every U.S. state.

In Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), the Supreme Court struck down a federal ballot law 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 Care Act. However, it also struck down an element of that police force that threatened to withhold Medicaid funding from states that did non cooperate with the law, 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 instance (and countless others), the Court used its ability of judicial review to declare that an act past a federal or state authorities was zippo and void because it contradicted a ramble provision. Information technology is this power that truly makes the courts a co-equal co-operative of government with the executive and legislative branches and allows it to defend the rights of the people confronting potential intrusions past those other branches.

©2014- 2022, National Paralegal College

National Juris University, the graduate partition of National Paralegal College, offers the following programs:

Chief of Science in Legal Studies
Main of Science in Compliance Law
Main of Scientific discipline in Tax

pattersonchen1991.blogspot.com

Source: https://nationalparalegal.edu/JudicialReview.aspx

Share this post