How Did the Courts Get the Power of Judicial Review

Judicial Review

past 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 example if Congress were to pass a police banning newspapers from printing information nearly certain political matters, courts would have the authority to rule that this police violates the Get-go Amendment, and is therefore unconstitutional. State courts also have the power to strike downwards their own country's laws based on the land or federal constitutions.

Today, we take judicial review for granted. In fact, it is one of the primary characteristics of authorities in the United states. On an almost daily basis, court decisions come up down from around the land striking down state and federal rules as existence unconstitutional. Some of the topics of these laws in recent times include aforementioned sex activity marriage bans, voter identification laws, gun restrictions, government surveillance programs and restrictions on abortion.

Other countries take likewise 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 have ruled that certain wage cuts for public employees are unconstitutional. The legal organization of the European Union specifically gives the Court of Justice of the European Matrimony the power of judicial review. The ability of judicial review is also 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.

Nonetheless, information technology was not e'er and so. In fact, the thought 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 civil police arrangement, judges are seen as those who use the police, with no power to create (or destroy) legal principles. In the (British) common constabulary system, on which American law is based, judges are seen as sources of constabulary, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid. However, as Britain has no Constitution, the principle that a courtroom could strike downwardly a law as existence unconstitutional was not relevant in Britain. Moreover, even to this day, Britain has an attachment to the thought of legislative supremacy. Therefore, judges in the United Kingdom practise not accept the ability 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 ascend from it in force until a century later.

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

If it be said that the legislative trunk 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 non to be collected from any particular provisions in the Constitution. Information technology is non 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. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to go along the latter inside the limits assigned to their authorization

Hamilton farther opined that:

A constitution is, in fact, and must be regarded by the judges, equally a central law. It therefore belongs to them to define its meaning, also as the meaning of any particular human action proceeding from the legislative body. If there should happen to be an irreconcilable variance betwixt 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… [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 by the latter rather than the former.

He and 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 former.

The Marbury Decision

In spite of Hamilton's support of the concept, the power of judicial review was non written into the The 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 police), simply makes no annotate equally to whether a legislative or executive action could exist struck down. Instead, the American precedent for judicial review comes from the Supreme Courtroom itself, in the landmark decision of Marbury v. Madison, v U.Due south. 137 (1803).

The story of Marbury is itself a fascinating report of political maneuvering. When Thomas Jefferson was elected as third President in a victory over John Adams, he was the offset President who was not 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 abroad past 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 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 information technology 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 direct conflict between the Courtroom and newly elected President Jefferson could have destabilizing consequences for the withal young and experimental government. Even so, 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 instance was in the Supreme Court in the get-go place was that the Judiciary Act of 1789 (Section 13) immune the Court the power to result writs of mandamus, such as the one beingness sought.

Even so, Commodity Iii, Section two, 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 Courtroom 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 only handle cases initially brought in the Supreme Court when those cases bear on ambassadors, strange ministers or consuls and when a state is a party. Otherwise, you can entreatment your case to the Supreme Courtroom, but y'all cannot bring it at that place in the start instance. As Marbury was not an administrator, foreign minister or consul and a state was non a party to the example, the Constitution did not let the Supreme Court to claim original jurisdiction over the example. 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 instance. The Judiciary Act that immune the Court to issue a writ in this example was unconstitutional and therefore void.

While the consequence favored Jefferson (Marbury never did become a federal guess), the case is remembered for the last point. It was the showtime time that a courtroom of the United States had struck down a statute every bit being unconstitutional.

Expansion After Marbury

Since Marbury, the Supreme Court 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 state court ceremonious cases, if they ascend 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 hateful that the Supreme Courtroom was empowered to overrule whatsoever state action, executive, judicial or legislative, if it deems such to be unconstitutional. Cooper v. Aaron, 358 U.Southward. ane (1958). Today, there is no serious opposition to the principle that all courts, not just the Supreme Court (and indeed, non only federal courts) are empowered to strike down legislation or executive actions that are inconsistent with the federal or applicable state Constitution.

Judicial Review: Impact

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

In Brownish five. Board of Teaching, 347 U.S. 483 (1954), the Supreme Court 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 5. 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 committee of a felony and could not afford their own counsel.

In Loving v. Virginia, 388 U.S. 1 (1967), the Supreme Courtroom struck downwardly a Virginia statute that prohibited interracial spousal relationship, also 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 voice 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 Courtroom temporarily halted the death penalty in the United States past ruling that state capital punishment statutes were not practical consistently or adequately plenty to laissez passer muster under the 8th Amendment.

In Roe v. Wade, 410 U.Southward. 113 (1973), the Supreme Court struck down state 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 correct to cull an abortion is protected every bit part of the correct to privacy still stands as the constabulary of the land.

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

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

In Lawrence 5. Texas, 539 U.S. 558 (2003), the Supreme Court struck downwards sodomy laws in fourteen states, making same-sex sexual activity legal in every U.S. state.

In Citizens United v. Federal Election Committee, 558 U.S. 310 (2010), the Supreme Court struck down a federal election law that restricted spending on election advertizement past corporations and other associations.

National Federation of Independent Business organization v. Sebelius (2012) (the "Obamacare" decision) was famous for upholding nigh of the Patient Protection and Affordable Care Deed. Withal, it as well struck downwards an element of that law 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 case (and countless others), the Court used its power of judicial review to declare that an act by a federal or land government was nil and void because it 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 information technology to defend the rights of the people against potential intrusions by those other branches.

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