What Authority Gives the Courts the Right to Review Legislative and Executive Actions

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 instance if Congress were to laissez passer a law banning newspapers from press information about certain political matters, courts would have the potency to rule that this police violates the First Amendment, and is therefore unconstitutional. State courts also take 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, it is one of the main characteristics of government in the Us. On an almost daily basis, court decisions come up downwards from around the state hitting down state and federal rules as being unconstitutional. Some of the topics of these laws in contempo times include same sex activity spousal relationship bans, voter identification laws, gun restrictions, government surveillance programs and restrictions on abortion.

Other countries take also gotten in on the concept of judicial review. A Romanaian courtroom 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 Union specifically gives the Court of Justice of the European Wedlock the power of judicial review. The power of judicial review is also afforded to the courts of Canada, Japan, India and other countries. Clearly, the earth tendency is in favor of giving courts the power to review the acts of the other branches of authorities.

Withal, information technology was non always so. In fact, the idea that the courts have the ability to strike down laws duly passed by the legislature is not much older than is the United States. In the civil law arrangement, judges are seen as those who use the police, with no ability to create (or destroy) legal principles. In the (British) common law arrangement, on which American law is based, judges are seen as sources of constabulary, capable of creating new legal principles, and besides capable of rejecting legal principles that are no longer valid. Withal, as Britain has no Constitution, the principle that a court could strike down a law equally being unconstitutional was not relevant in Britain. Moreover, even to this day, United kingdom of great britain and northern ireland has an zipper to the idea of legislative supremacy. Therefore, judges in the Uk 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, only judicial review did not arise from it in force until a century later.

The principle of judicial review appeared in Federalist Newspaper #78, authored by Alexander Hamilton. Hamilton outset tending 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 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 exist the natural presumption, where information technology is non to be collected from any particular provisions in the Constitution. Information technology is not 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 torso between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their dominance

Hamilton farther opined that:

A constitution is, in fact, and must be regarded by the judges, every bit a fundamental police force. It therefore belongs to them to ascertain its meaning, as well as the pregnant 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 be preferred; or, in other words, the Constitution ought to be 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 and then came out and explicitly argued for the power of judicial review:

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

The Marbury Decision

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

The story of Marbury is itself a fascinating study 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 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 final hours in office, Adams appointed several federal judges, including William Marbury. The commission had non however been delivered when Jefferson was sworn in and Secretary of Country James Madison refused to deliver the commissions to the judicial appointments of Adams. Marbury and others sued in the Supreme Courtroom, seeking a writ of mandamus: an guild to compel Madison to deliver the commissions duly created by Adams while he was President.

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

Instead, Marshall and the Courtroom decided the case on procedural grounds. The entire reason the case was in the Supreme Court in the offset place was that the Judiciary Human action of 1789 (Section thirteen) immune the Court the power to event writs of mandamus, such every bit the 1 beingness sought.

All the same, Article Iii, Section ii, Clause 2 of the Constitution says:

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

In other words, the Supreme Court can but 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 tin appeal your case to the Supreme Court, but you cannot bring information technology there in the first case. As Marbury was not an ambassador, strange government minister or consul 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'south commission cannot be decided by the Court. The case had to be dismissed since the Court had no jurisdiction over the case. The Judiciary Act that allowed the Court to event a writ in this case was unconstitutional and therefore void.

While the result favored Jefferson (Marbury never did go a federal guess), the case is remembered for the terminal point. Information technology was the showtime fourth dimension that a court of the United states of america had struck down a statute as being unconstitutional.

Expansion Afterwards Marbury

Since Marbury, the Supreme Court has greatly expanded the power of judicial review. In Martin 5. Hunter's Lessee, 14 U.S. 304 (1816), the Courtroom ruled that it may review land court civil cases, if they ascend nether federal or constitutional law. A few years later, it determined the same for country courtroom criminal cases. Cohens v. Virginia, 19 U.Southward. 264 (1821). In 1958, the Supreme Court extended judicial review to hateful that the Supreme Courtroom was empowered to overrule any state action, executive, judicial or legislative, if it deems such to be unconstitutional. Cooper five. Aaron, 358 U.S. 1 (1958). Today, there is no serious opposition to the principle that all courts, not just the Supreme Court (and indeed, non just federal courts) are empowered to strike down legislation or executive actions that are inconsistent with the federal or applicative state Constitution.

Judicial Review: Touch on

Information technology is difficult to overstate the outcome that Marbury and its progeny accept had on the American legal organization. A comprehensive list of of import cases that take struck down federal or state 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 Brown 5. Lath of Education, 347 U.S. 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 v. Wainwright, 372 U.S. 335 (1963), the Supreme Courtroom forced states to provide counsel in criminal cases for indigent defendants who were existence tried for commission of a felony and could non afford their own counsel.

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

In Brandenburg v. Ohio, 395 U.Due south. 444 (1969), the Supreme Court ruled that country criminal laws that punished people for incitement could not be practical unless the spoken language in question was intended to and likely to, cause people to appoint in imminent lawless activity.

In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Courtroom temporarily halted the decease penalization in the United States by ruling that country death penalty statutes were non applied consistently or adequately plenty to pass muster nether the 8th Amendment.

In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Courtroom struck downwards country laws that made 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 basic thought that the right to cull an abortion is protected as part of the right to privacy even so stands as the law of the land.

In Buckley 5. Valeo, 424 U.S. one (1976), the Supreme Court struck downward spending limits on individuals or groups who wished to utilise their ain money to promote a political candidate or message (though information technology upheld limitations on how much could exist contributed directly to a campaign) on First Amendment grounds.

In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Supreme Court 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 Court struck downwards sodomy laws in fourteen states, making same-sex sexual practice legal in every U.S. state.

In Citizens United v. Federal Election Committee, 558 U.Due south. 310 (2010), the Supreme Court struck downwards a federal election law that restricted spending on election advertising by corporations and other associations.

National Federation of Independent Business organisation v. Sebelius (2012) (the "Obamacare" decision) was famous for upholding most of the Patient Protection and Affordable Intendance Act. Nonetheless, it too struck down 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 state sovereignty.

Though some of these decisions remain controversial, none of these decisions would have been possible without judicial review. In every case (and endless others), the Court used its power of judicial review to declare that an act by a federal or state regime was null and void considering information technology contradicted a constitutional provision. Information technology 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 confronting potential intrusions by those other branches.

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