The Doctrine of Judicial Review Was Established by ____________________

Judicial Review

past 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 law banning newspapers from printing information about certain political matters, courts would take the potency to rule that this law violates the Starting time Amendment, and is therefore unconstitutional. State courts besides have the ability to strike down their own country's laws based on the country or federal constitutions.

Today, we have judicial review for granted. In fact, it is ane of the main characteristics of regime in the United States. On an about daily basis, courtroom decisions come down from around the country striking down state and federal rules every bit being unconstitutional. Some of the topics of these laws in contempo times include same sex matrimony bans, voter identification laws, gun restrictions, government surveillance programs and restrictions on abortion.

Other countries have likewise gotten in on the concept of judicial review. A Romanian courtroom recently ruled that a law granting immunity to lawmakers and banning certain types of speech against public officials was unconstitutional. Greek courts have ruled that certain wage cuts for public employees are unconstitutional. The legal system of the European Marriage specifically gives the Court of Justice of the European Union the power of judicial review. The power of judicial review is likewise 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.

Nevertheless, information technology was not e'er then. In fact, the idea that the courts accept the ability to strike downwards laws duly passed by the legislature is non much older than is the United States. In the civil constabulary system, judges are seen equally those who utilise the police, with no ability to create (or destroy) legal principles. In the (British) common police force system, on which American law is based, judges are seen as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid. Even so, as Great britain has no Constitution, the principle that a courtroom could strike down a law as being unconstitutional was not relevant in Britain. Moreover, fifty-fifty to this twenty-four hour period, United kingdom has an attachment to the thought of legislative supremacy. Therefore, judges in the Britain practise not have the ability 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 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 idea that legislatures should be 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 be answered, that this cannot be the natural presumption, where it is not to be collected from whatever item 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 social club, amid other things, to keep the latter within the limits assigned to their authority

Hamilton farther opined that:

A constitution is, in fact, and must be regarded past the judges, as a cardinal constabulary. It therefore belongs to them to ascertain its meaning, also as the meaning of whatsoever detail act proceeding from the legislative trunk. If there should happen to be an irreconcilable variance between the ii, that which has the superior obligation and validity ought, of class, to be preferred; or, in other words, the Constitution ought to be preferred to the statute… [Due west]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 by the latter rather than the former.

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

Whenever a particular statute contravenes the Constitution, it volition be 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 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 law), but makes no comment as to whether a legislative or executive activity could be struck down. Instead, the American precedent for judicial review comes from the Supreme Court itself, in the landmark conclusion of Marbury v. Madison, 5 U.S. 137 (1803).

The story of Marbury is itself a fascinating study of political maneuvering. When Thomas Jefferson was elected equally 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 demote at every opportunity. The Federalist judges were to and then fade away by attrition.

During his final hours in office, Adams appointed several federal judges, including William Marbury. The commission had non 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 social club to compel Madison to evangelize 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 Courtroom Primary Justice John Marshall worried that a direct conflict betwixt the Court and newly elected President Jefferson could have destabilizing consequences for the yet young and experimental government. Withal, Marshall could not very well rule that the commissions ought non to be delivered when it was apparent to most that they were proper.

Instead, Marshall and the Court decided the instance on procedural grounds. The unabridged reason the case 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 issue writs of mandamus, such equally the one being sought.

However, Article Three, Department 2, Clause ii of the Constitution says:

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

In other words, the Supreme Court can just handle cases initially brought in the Supreme Court when those cases affect ambassadors, strange ministers or consuls and when a state is a party. Otherwise, you can appeal your case to the Supreme Court, but you cannot bring it in that location in the beginning instance. As Marbury was not an ambassador, foreign 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 be decided by the Court. The case had to exist dismissed since the Courtroom 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 upshot favored Jefferson (Marbury never did get a federal approximate), the case is remembered for the final point. It was the first time that a courtroom of the United States had struck down a statute equally beingness unconstitutional.

Expansion Afterward Marbury

Since Marbury, the Supreme Court has profoundly expanded the power of judicial review. In Martin v. Hunter'due south Lessee, 14 U.S. 304 (1816), the Courtroom ruled that it may review land court civil cases, if they arise under federal or constitutional police. A few years later, it determined the aforementioned 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 country activeness, executive, judicial or legislative, if information technology deems such to be unconstitutional. Cooper five. Aaron, 358 U.S. 1 (1958). Today, at that place is no serious opposition to the principle that all courts, non but the Supreme Court (and indeed, non just federal courts) are empowered to strike downward legislation or executive deportment that are inconsistent with the federal or applicable land Constitution.

Judicial Review: Bear on

Information technology is difficult to overstate the effect that Marbury and its progeny have had on the American legal organisation. A comprehensive list of of import cases that have struck down federal or state statutes would easily achieve four digits. But a epitomize of some of the most of import historical Court decisions should serve to demonstrate the bear upon of judicial review.

In Brown 5. Lath of Teaching, 347 U.Due south. 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 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 commission of a felony and could not afford their ain counsel.

In Loving 5. Virginia, 388 U.Due south. 1 (1967), the Supreme Court struck down a Virginia statute that prohibited interracial wedlock, also on equal protection grounds.

In Brandenburg v. Ohio, 395 U.South. 444 (1969), the Supreme Courtroom ruled that land 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 5. Georgia, 408 U.South. 238 (1972), the Supreme Court temporarily halted the death penalty in the United States by ruling that land death penalization statutes were non applied consistently or fairly enough to laissez passer muster under the 8th Subpoena.

In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court struck downward state laws that made abortion illegal. Though Roe and many later on cases have walked a tight line in determining exactly how far the correct to choose an abortion extends, the bones thought that the correct to choose an abortion is protected as office of the right to privacy even so stands as the police of the land.

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Courtroom struck downwardly spending limits on individuals or groups who wished to use 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 Get-go Amendment grounds.

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

In Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court struck downwardly sodomy laws in fourteen states, making aforementioned-sex sex activity legal in every U.Southward. state.

In Citizens United five. Federal Ballot Commission, 558 U.S. 310 (2010), the Supreme Court struck down a federal election police force that restricted spending on election advertising past corporations and other associations.

National Federation of Independent Business v. Sebelius (2012) (the "Obamacare" decision) was famous for upholding nigh of the Patient Protection and Affordable Intendance Act. However, it also struck down an element of that constabulary 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 land 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 Courtroom used its power of judicial review to declare that an act by a federal or state government was null and void considering it contradicted a constitutional provision. It is this ability 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 past those other branches.

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