How Does Judicial Review Check the Other Branches

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 laissez passer a police banning newspapers from printing information about sure political matters, courts would have the authority to rule that this police force violates the Starting time Amendment, and is therefore unconstitutional. State courts also accept the power to strike down their own land's laws based on the land or federal constitutions.

Today, we take judicial review for granted. In fact, it is ane of the main characteristics of authorities in the United States. On an near daily basis, court decisions come up down from around the country striking downwards state and federal rules every bit beingness unconstitutional. Some of the topics of these laws in recent times include same sex union bans, voter identification laws, gun restrictions, authorities surveillance programs and restrictions on ballgame.

Other countries take 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 voice communication against public officials was unconstitutional. Greek courts accept ruled that sure wage cuts for public employees are unconstitutional. The legal organisation of the European Spousal relationship specifically gives the Courtroom of Justice of the European Union 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 globe tendency is in favor of giving courts the power to review the acts of the other branches of regime.

However, it was not always so. In fact, the idea that the courts take the ability to strike down laws duly passed by the legislature is not much older than is the U.s.a.. In the civil constabulary system, judges are seen every bit those who use the police force, with no power to create (or destroy) legal principles. In the (British) common police force arrangement, on which American police force is based, judges are seen every bit sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid. However, as U.k. has no Constitution, the principle that a courtroom could strike down a law as being unconstitutional was non relevant in U.k.. Moreover, even to this twenty-four hour period, Great britain has an attachment to the idea of legislative supremacy. Therefore, judges in the Great britain do not have the power to strike downwards legislation.

History

The principle of judicial review has its roots in the principle of separation of powers. Separation of powers was introduced past Baron de Montesquieu in the 17th century, just judicial review did not arise from information technology in strength 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 torso are themselves the constitutional judges of their ain powers, and that the construction they put upon them is conclusive upon the other departments, information technology may be answered, that this cannot be the natural presumption, where it is not to be nerveless from any particular provisions in the Constitution. It is not 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 keep the latter within the limits assigned to their authority

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 equally the pregnant of any particular act proceeding from the legislative torso. If there should happen to exist an irreconcilable variance between the ii, that which has the superior obligation and validity ought, of grade, to be preferred; or, in other words, the Constitution ought to be preferred to the statute… [W]hither 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 erstwhile.

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

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

The Marbury Decision

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), but makes no annotate as to whether a legislative or executive action could be struck downwards. Instead, the American precedent for judicial review comes from the Supreme Court itself, in the landmark decision of Marbury 5. Madison, 5 U.Due south. 137 (1803).

The story of Marbury is itself a fascinating study of political maneuvering. When Thomas Jefferson was elected equally tertiary President in a victory over John Adams, he was the get-go President who was non a fellow member of the Federalist political party. He wanted to purge Federalists from the judiciary by appointing non-Federalists to the bench at every opportunity. The Federalist judges were to so fade abroad by attrition.

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 order to compel Madison to deliver the commissions duly created past Adams while he was President.

While information technology was adequately apparent to all that the commission was perfectly valid and should take been delivered, Supreme Courtroom Main Justice John Marshall worried that a direct disharmonize between the Courtroom and newly elected President Jefferson could have destabilizing consequences for the yet young and experimental regime. Nevertheless, Marshall could not very well rule that the commissions ought non to exist delivered when information technology was apparent to most that they were proper.

Instead, Marshall and the Court decided the case on procedural grounds. The unabridged reason the example was in the Supreme Courtroom in the kickoff place was that the Judiciary Act of 1789 (Section xiii) allowed the Court the power to upshot writs of mandamus, such as the ane beingness sought.

However, Article III, Department two, Clause two of the Constitution says:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a Land shall exist a Political party, the Supreme Court shall have original Jurisdiction. In all the other Cases earlier mentioned, the Supreme Court shall have appellate Jurisdiction, both every bit to Police and Fact, with such Exceptions, and nether such Regulations as the Congress shall make.

In other words, the Supreme Courtroom tin can only handle cases initially brought in the Supreme Court when those cases impact ambassadors, foreign ministers or consuls and when a state is a party. Otherwise, you can appeal your example to the Supreme Court, only you cannot bring it there in the first case. As Marbury was not an ambassador, foreign government minister or consul and a state was not a political party to the case, the Constitution did not let the Supreme Courtroom to claim original jurisdiction over the case. Therefore, Marshall and the Court ruled, whether Jefferson and Madison acted properly in denying Marbury'due south commission cannot be decided by the Court. The case had to exist dismissed since the Court had no jurisdiction over the instance. The Judiciary Human activity that allowed the Court to consequence a writ in this example was unconstitutional and therefore void.

While the result favored Jefferson (Marbury never did become a federal judge), the case is remembered for the final point. It was the first time that a court of the U.s. had struck down a statute as being unconstitutional.

Expansion Subsequently Marbury

Since Marbury, the Supreme Court has profoundly expanded the power of judicial review. In Martin v. Hunter's Lessee, 14 U.S. 304 (1816), the Courtroom ruled that it may review country court ceremonious cases, if they arise under federal or constitutional law. A few years after, it adamant 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 five. Aaron, 358 U.S. one (1958). Today, at that place is no serious opposition to the principle that all courts, not just the Supreme Court (and indeed, not but federal courts) are empowered to strike down legislation or executive actions that are inconsistent with the federal or applicable country Constitution.

Judicial Review: Touch on

It is difficult to overstate the effect that Marbury and its progeny have had on the American legal organization. A comprehensive list of important cases that accept struck downwards federal or state statutes would easily attain 4 digits. Just a recap of some of the well-nigh of import historical Courtroom decisions should serve to demonstrate the affect of judicial review.

In Brown v. Board of Education, 347 U.Due south. 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 Subpoena.

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 being tried for committee of a felony and could not afford their own counsel.

In Loving five. Virginia, 388 U.S. 1 (1967), the Supreme Court struck down a Virginia statute that prohibited interracial union, likewise on equal protection grounds.

In Brandenburg 5. Ohio, 395 U.S. 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.South. 238 (1972), the Supreme Court temporarily halted the expiry punishment in the United States past ruling that state capital punishment statutes were non applied consistently or fairly plenty to pass muster under the Eighth Amendment.

In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court struck down land laws that fabricated ballgame 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 thought that the right to cull an ballgame is protected as part of the correct to privacy still stands every bit the law of the land.

In Buckley v. Valeo, 424 U.Southward. 1 (1976), the Supreme Courtroom struck down spending limits on individuals or groups who wished to employ their ain coin to promote a political candidate or message (though it upheld limitations on how much could exist contributed directly to a entrada) on Outset Subpoena grounds.

In Regents of the Academy of California v. Bakke, 438 U.Due south. 265 (1978), the Supreme Court struck down sure types of race-based preferences in state higher admissions equally violating the equal protection clause.

In Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court struck down sodomy laws in 14 states, making same-sex sex activity legal in every U.South. land.

In Citizens United 5. Federal Election Committee, 558 U.S. 310 (2010), the Supreme Court struck down a federal election law that restricted spending on election advertizing by corporations and other associations.

National Federation of Independent Business organization 5. Sebelius (2012) (the "Obamacare" decision) was famous for upholding nearly of the Patient Protection and Affordable Care Act. Nonetheless, it likewise struck downwardly an element of that law that threatened to withhold Medicaid funding from states that did not cooperate with the constabulary, on the grounds that this was an unconstitutional violation of country sovereignty.

Though some of these decisions remain controversial, none of these decisions would take 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 state government was nix and void because information technology contradicted a constitutional provision. It is this power that truly makes the courts a co-equal branch of government 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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