How Did the Supreme Court Get 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 example if Congress were to pass a police force banning newspapers from printing information virtually certain political matters, courts would take the say-so 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 country or federal constitutions.

Today, we accept judicial review for granted. In fact, it is one of the main characteristics of government in the The states. On an virtually daily footing, courtroom decisions come up downward from around the country hit downwards land and federal rules equally existence unconstitutional. Some of the topics of these laws in contempo times include same sex activity spousal relationship 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 law granting immunity to lawmakers and banning certain types of speech against public officials was unconstitutional. Greek courts take ruled that sure wage cuts for public employees are unconstitutional. The legal system of the European Wedlock specifically gives the Court of Justice of the European Union the power of judicial review. The power of judicial review is also afforded to the courts of Canada, Nippon, India and other countries. Clearly, the world tendency is in favor of giving courts the power to review the acts of the other branches of authorities.

However, it was not ever so. In fact, the thought that the courts accept the power to strike downwardly laws duly passed by the legislature is non much older than is the United States. In the ceremonious law system, judges are seen equally those who apply the law, 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 equally sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid. Yet, every bit Britain has no Constitution, the principle that a courtroom could strike down a law equally being unconstitutional was non relevant in Britain. Moreover, fifty-fifty to this twenty-four hour period, Britain has an attachment to the thought of legislative supremacy. Therefore, judges in the United Kingdom practice not have the power 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 past Businesswoman de Montesquieu in the 17th century, merely judicial review did not ascend from it in force until a century later.

The principle of judicial review appeared in Federalist Paper #78, authored by Alexander Hamilton. Hamilton get-go disposed of the thought that legislatures should be left to enforce the Constitution upon themselves:

If it exist said that the legislative torso are themselves the constitutional judges of their own powers, and that the structure 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. 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 go along the latter inside the limits assigned to their say-so

Hamilton further opined that:

A constitution is, in fact, and must be regarded past the judges, every bit a fundamental law. It therefore belongs to them to ascertain its meaning, also as the significant of whatever particular deed proceeding from the legislative body. If in that location should happen to exist an irreconcilable variance between the ii, 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… [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 exist governed by the latter rather than the erstwhile.

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

Whenever a particular statute contravenes the Constitution, information technology volition exist the duty of the judicial tribunals to adhere to the latter and disregard the sometime.

The Marbury Decision

In spite of Hamilton'due 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 every bit those arising under federal law), but makes no comment equally 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 determination of Marbury v. Madison, 5 U.S. 137 (1803).

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

During his concluding hours in function, 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 evangelize the commissions to the judicial appointments of Adams. Marbury and others sued in the Supreme Court, seeking a writ of mandamus: an club to hogtie Madison to evangelize the commissions duly created by Adams while he was President.

While it was fairly credible to all that the commission was perfectly valid and should have been delivered, Supreme Court Chief Justice John Marshall worried that a straight disharmonize between the Court and newly elected President Jefferson could have destabilizing consequences for the yet young and experimental government. Yet, Marshall could non very well rule that the commissions ought not to exist 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 case was in the Supreme Court in the outset place was that the Judiciary Act of 1789 (Department thirteen) immune the Courtroom the power to consequence writs of mandamus, such as the one being sought.

However, Article III, Section 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 Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have 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 can only handle cases initially brought in the Supreme Court when those cases touch on ambassadors, foreign ministers or consuls and when a land is a party. Otherwise, you tin entreatment your case to the Supreme Court, but y'all cannot bring it there in the first instance. As Marbury was not an ambassador, foreign minister or consul and a land was not a political party to the example, the Constitution did not allow 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 instance had to be dismissed since the Courtroom had no jurisdiction over the case. The Judiciary Deed that immune 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 estimate), the example is remembered for the last point. It was the first time that a courtroom of the United States had struck down a statute equally being unconstitutional.

Expansion After Marbury

Since Marbury, the Supreme Court has greatly expanded the ability of judicial review. In Martin five. Hunter's Lessee, 14 U.S. 304 (1816), the Courtroom ruled that it may review state courtroom ceremonious cases, if they ascend under federal or constitutional law. A few years later, 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 whatever state action, executive, judicial or legislative, if it deems such to be unconstitutional. Cooper v. Aaron, 358 U.Due south. 1 (1958). Today, there 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 downwardly legislation or executive deportment that are inconsistent with the federal or applicative state Constitution.

Judicial Review: Impact

It is hard to overstate the effect that Marbury and its progeny have had on the American legal system. A comprehensive listing of important cases that have struck downwardly federal or state statutes would easily reach 4 digits. But a recap of some of the most important historical Court decisions should serve to demonstrate the impact of judicial review.

In Brown five. Board of Educational activity, 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.Due 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 own counsel.

In Loving 5. Virginia, 388 U.S. ane (1967), the Supreme Court struck down a Virginia statute that prohibited interracial marriage, likewise 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 not exist applied unless the speech communication in question was intended to and likely to, crusade people to appoint in imminent lawless activeness.

In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court temporarily halted the capital punishment in the Usa by ruling that state death penalty statutes were non applied consistently or fairly enough to pass muster under the Eighth Amendment.

In Roe 5. Wade, 410 U.Southward. 113 (1973), the Supreme Courtroom struck down country laws that made abortion illegal. Though Roe and many after cases accept walked a tight line in determining exactly how far the right to choose an ballgame extends, the basic thought that the correct to choose an abortion is protected as part of the correct to privacy still stands equally the law of the land.

In Buckley 5. Valeo, 424 U.Southward. 1 (1976), the Supreme Court struck down 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 directly to a campaign) on First Subpoena grounds.

In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Supreme Court struck down sure types of race-based preferences in country higher 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 aforementioned-sex sexual activity legal in every U.Southward. state.

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

National Federation of Contained Business five. Sebelius (2012) (the "Obamacare" decision) was famous for upholding most of the Patient Protection and Affordable Care Human activity. However, it also struck down an element of that police that threatened to withhold Medicaid funding from states that did not 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 example (and countless others), the Court used its power of judicial review to declare that an act by a federal or state government was nothing and void because it contradicted a ramble 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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