How Does Judicial Review Apply to Congressional Acts

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 case if Congress were to pass a police banning newspapers from printing data virtually sure political matters, courts would have the authorisation to rule that this law violates the Starting time Subpoena, and is therefore unconstitutional. State courts also have the power to strike down their own state's laws based on the state or federal constitutions.

Today, we take judicial review for granted. In fact, it is one of the primary characteristics of regime in the United States. On an nearly daily basis, court decisions come down from around the country striking down country and federal rules every bit being unconstitutional. Some of the topics of these laws in contempo times include same sexual activity marriage bans, voter identification laws, gun restrictions, regime surveillance programs and restrictions on abortion.

Other countries have also gotten in on the concept of judicial review. A Romanian courtroom recently ruled that a law granting immunity to lawmakers and banning sure types of speech confronting public officials was unconstitutional. Greek courts have ruled that certain wage cuts for public employees are unconstitutional. The legal system of the European Spousal relationship specifically gives the Courtroom of Justice of the European Wedlock the power of judicial review. The ability of judicial review is besides afforded to the courts of Canada, Japan, 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.

Withal, it was not always so. In fact, the idea that the courts have the power to strike down laws duly passed past the legislature is not much older than is the United States. In the civil law system, judges are seen as those who utilise the law, with no ability to create (or destroy) legal principles. In the (British) mutual law arrangement, on which American constabulary is based, judges are seen as sources of police, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid. However, equally Britain has no Constitution, the principle that a court could strike downwardly a law every bit existence unconstitutional was non relevant in United kingdom of great britain and northern ireland. Moreover, even to this day, Britain has an attachment to the idea of legislative supremacy. Therefore, judges in the Great britain do not 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, but judicial review did non arise from it in force until a century later.

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

If information technology be said that the legislative torso 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 be answered, that this cannot be the natural presumption, where it is non to be collected from any particular provisions in the Constitution. Information technology 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. It is far more than rational to suppose, that the courts were designed to be an intermediate torso between the people and the legislature, in guild, 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 by the judges, as a primal constabulary. It therefore belongs to them to ascertain its meaning, as well as the pregnant of any particular act proceeding from the legislative torso. If in that location should happen to be an irreconcilable variance betwixt the 2, that which has the superior obligation and validity ought, of class, to exist preferred; or, in other words, the Constitution ought to be preferred to the statute… [West]here the volition of the legislature, declared in its statutes, stands in opposition to that of the people, alleged in the Constitution, the judges ought to be governed past the latter rather than the former.

He so came out and explicitly argued for the ability 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 disregard the sometime.

The Marbury Determination

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 power to the judiciary, extends judicial power to various types of cases (such as those arising under federal constabulary), merely makes no annotate 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 determination of Marbury five. Madison, 5 U.S. 137 (1803).

The story of Marbury is itself a fascinating study of political maneuvering. When Thomas Jefferson was elected as 3rd 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 and so fade away by compunction.

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 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 lodge 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 Courtroom Principal Justice John Marshall worried that a direct conflict between the Court and newly elected President Jefferson could accept destabilizing consequences for the yet young and experimental government. Nevertheless, Marshall could not very well rule that the commissions ought non to be delivered when information technology was apparent to most that they were proper.

Instead, Marshall and the Court decided the instance 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 thirteen) immune the Court the power to issue writs of mandamus, such as the one being sought.

However, Commodity 3, Department 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 Political party, the Supreme Court shall have original Jurisdiction. In all the other Cases earlier mentioned, the Supreme Courtroom shall have appellate Jurisdiction, both as to Police and Fact, with such Exceptions, and under such Regulations as the Congress shall brand.

In other words, the Supreme Court can only handle cases initially brought in the Supreme Courtroom when those cases affect ambassadors, foreign ministers or consuls and when a state is a party. Otherwise, you can entreatment your case to the Supreme Court, but you cannot bring information technology in that location in the first case. Every bit Marbury was not an ambassador, strange government minister or delegate and a state was not a political 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 commission cannot exist 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 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 point. It was the first time that a court of the United states had struck down a statute as being unconstitutional.

Expansion After Marbury

Since Marbury, the Supreme Court has greatly expanded the power of judicial review. In Martin 5. Hunter'south Lessee, fourteen U.Due south. 304 (1816), the Court ruled that information technology may review state court civil cases, if they arise under federal or constitutional law. A few years later, it determined the aforementioned for state courtroom criminal cases. Cohens five. Virginia, 19 U.S. 264 (1821). In 1958, the Supreme Court extended judicial review to hateful that the Supreme Court was empowered to overrule whatsoever country action, executive, judicial or legislative, if it deems such to be unconstitutional. Cooper v. Aaron, 358 U.S. ane (1958). Today, at that place 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 upon

Information technology is difficult to overstate the effect that Marbury and its progeny accept had on the American legal system. A comprehensive list of important cases that have struck down federal or state statutes would easily reach 4 digits. But a recap of some of the nearly important historical Courtroom decisions should serve to demonstrate the affect of judicial review.

In Dark-brown v. Lath of Education, 347 U.S. 483 (1954), the Supreme Courtroom 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 Court forced states to provide counsel in criminal cases for indigent defendants who were existence tried for commission of a felony and could not afford their own counsel.

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

In Brandenburg 5. Ohio, 395 U.Southward. 444 (1969), the Supreme Court ruled that state criminal laws that punished people for incitement could not be applied unless the speech communication 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 Courtroom temporarily halted the capital punishment in the United States past ruling that state decease punishment statutes were non practical consistently or fairly enough to laissez passer muster nether the Eighth Subpoena.

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

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court struck down spending limits on individuals or groups who wished to employ their own money to promote a political candidate or message (though it upheld limitations on how much could be contributed directly to a campaign) on Outset 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 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 activeness legal in every U.Due south. state.

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

National Federation of Independent Concern v. Sebelius (2012) (the "Obamacare" decision) was famous for upholding most of the Patient Protection and Affordable Care Act. Notwithstanding, information technology also struck downwards an element of that police 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 take been possible without judicial review. In every instance (and countless others), the Courtroom used its power of judicial review to declare that an deed past a federal or country government was null and void because information technology contradicted a constitutional provision. It is this power that truly makes the courts a co-equal branch of authorities 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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