Which Branch of Government Has the Power of Judicial Review? *

Judicial Review

past Stephen Haas

Overview

Judicial review is the power of the courts to declare that acts of the other branches of regime are unconstitutional, and thus unenforceable. For case if Congress were to pass a police force banning newspapers from printing information about sure political matters, courts would have the say-so to rule that this constabulary violates the First Amendment, and is therefore unconstitutional. State courts also have the ability to strike downwardly their own country'south 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 government in the Usa. On an nigh daily basis, court decisions come down from around the country striking downwards state and federal rules as beingness unconstitutional. Some of the topics of these laws in recent times include same sexual activity marriage bans, voter identification laws, gun restrictions, regime surveillance programs and restrictions on abortion.

Other countries accept also gotten in on the concept of judicial review. A Romanian court recently ruled that a police force granting immunity to lawmakers and banning certain types of voice communication against public officials was unconstitutional. Greek courts have 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 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 ability to review the acts of the other branches of government.

However, it was not always so. In fact, the idea that the courts have the power to strike downwardly laws duly passed past the legislature is non much older than is the United States. In the civil law system, judges are seen as those who apply the constabulary, with no power to create (or destroy) legal principles. In the (British) common police organisation, 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as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid. However, as United kingdom has no Constitution, the principle that a court could strike down a police equally existence unconstitutional was not relevant in Britain. Moreover, fifty-fifty to this day, Britain has an attachment to the idea of legislative supremacy. Therefore, judges in the United Kingdom do non take 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, just judicial review did not arise from it in force until a century subsequently.

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 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 exist answered, that this cannot be the natural presumption, where it is not to be collected from whatsoever detail provisions in the Constitution. It 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 betwixt the people and the legislature, in order, among other things, to proceed the latter within the limits assigned to their dominance

Hamilton further opined that:

A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its pregnant, every bit well as the significant 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… [West]here the volition 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 onetime.

He 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 back up of the concept, the power of judicial review was not written into the The states Constitution. Article 3 of the Constitution, in granting power to the judiciary, extends judicial ability to diverse types of cases (such as those arising under federal law), but makes no comment 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 decision of Marbury v. Madison, v U.S. 137 (1803).

The story of Marbury is itself a fascinating written report of political maneuvering. When Thomas Jefferson was elected as third President in a victory over John Adams, he was the kickoff President who was not a 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 then fade away by attrition.

During his last hours in office, Adams appointed several federal judges, including William Marbury. The committee had not even so been delivered when Jefferson was sworn in and Secretary of State James Madison refused to evangelize the commissions to the judicial appointments of Adams. Marbury and others sued in the Supreme Court, seeking a writ of mandamus: an society to hogtie Madison to deliver the commissions duly created by Adams while he was President.

While information technology was fairly apparent to all that the committee was perfectly valid and should have been delivered, Supreme Courtroom Primary Justice John Marshall worried that a direct conflict between the Courtroom and newly elected President Jefferson could have destabilizing consequences for the however young and experimental government. Nevertheless, Marshall could not very well rule that the commissions ought non to be delivered when it was credible to near that they were proper.

Instead, Marshall and the Court decided the instance on procedural grounds. The entire reason the instance was in the Supreme Court in the first place was that the Judiciary Act of 1789 (Section 13) allowed the Court the power to issue writs of mandamus, such as the i being sought.

However, Article Three, 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 exist a Party, the Supreme Court shall have original Jurisdiction. In all the other Cases earlier mentioned, the Supreme Court shall take appellate Jurisdiction, both equally to Law and Fact, with such Exceptions, and under such Regulations every bit the Congress shall make.

In other words, the Supreme Court can only handle cases initially brought in the Supreme Court when those cases bear upon ambassadors, foreign ministers or consuls and when a land is a party. Otherwise, you tin appeal your example to the Supreme Court, but you cannot bring it in that location in the starting time case. As Marbury was non an ambassador, foreign government minister or delegate and a state was not a party to the case, the Constitution did not permit the Supreme Court to merits original jurisdiction over the case. Therefore, Marshall and the Court ruled, whether Jefferson and Madison acted properly in denying Marbury'southward committee cannot be decided by the Court. The case had to exist dismissed since the Court had no jurisdiction over the example. The Judiciary Human action that allowed the Court to outcome a writ in this case was unconstitutional and therefore void.

While the consequence favored Jefferson (Marbury never did become a federal judge), the example is remembered for the last betoken. It was the start time that a courtroom of the United States had struck down a statute as being unconstitutional.

Expansion Later Marbury

Since Marbury, the Supreme Courtroom has profoundly expanded the power of judicial review. In Martin v. Hunter'southward Lessee, 14 U.South. 304 (1816), the Court ruled that it may review country court civil cases, if they arise nether federal or constitutional law. A few years afterwards, it determined the same for state court criminal cases. Cohens five. Virginia, 19 U.S. 264 (1821). In 1958, the Supreme Court extended judicial review to mean that the Supreme Court was empowered to overrule whatever state action, executive, judicial or legislative, if it deems such to be unconstitutional. Cooper 5. Aaron, 358 U.S. 1 (1958). Today, there is no serious opposition to the principle that all courts, not but 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: Affect

Information technology is hard to overstate the effect that Marbury and its progeny take had on the American legal system. A comprehensive list of important cases that have struck downwardly federal or state statutes would easily reach iv digits. But a recap of some of the most important historical Court decisions should serve to demonstrate the affect of judicial review.

In Dark-brown v. Board of Instruction, 347 U.S. 483 (1954), the Supreme Court struck downward 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 five. Wainwright, 372 U.South. 335 (1963), the Supreme Court 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 five. Virginia, 388 U.Southward. i (1967), the Supreme Court struck downwards a Virginia statute that prohibited interracial marriage, besides on equal protection grounds.

In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme Court ruled that state criminal laws that punished people for incitement could non be applied unless the oral communication in question was intended to and likely to, crusade people to engage in imminent lawless action.

In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Courtroom temporarily halted the death sentence in the Usa by ruling that land death sentence statutes were not applied consistently or fairly plenty to pass muster under the 8th Amendment.

In Roe 5. Wade, 410 U.S. 113 (1973), the Supreme Court struck downwards 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 thought that the right to choose an abortion is protected as function of the right to privacy however stands as the law of the land.

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

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

In Lawrence v. Texas, 539 U.Due south. 558 (2003), the Supreme Court struck down sodomy laws in 14 states, making same-sex activity sexual practice legal in every U.Southward. state.

In Citizens United v. Federal Election Committee, 558 U.S. 310 (2010), the Supreme Courtroom struck down a federal election police that restricted spending on ballot ad by corporations and other associations.

National Federation of Contained Concern v. Sebelius (2012) (the "Obamacare" decision) was famous for upholding about of the Patient Protection and Affordable Care Act. Yet, information technology also struck down an element of that police force 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 endless others), the Court used its power of judicial review to declare that an act past a federal or state authorities was cypher and void because it 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 it to defend the rights of the people against potential intrusions past those other branches.

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