Eleanor Finch
Judicial review is a key feature of federal judicial power in the United States, allowing federal courts to declare government actions unconstitutional. The concept was first asserted in Marbury v. Madison in 1803, when the Supreme Court had to decide whether an Act of Congress or the Constitution was the supreme law of the land. While the Constitution does not explicitly grant federal courts this power, the historical record suggests that those who framed and ratified it were aware of the concept and some favoured granting courts this authority. Judicial review has been criticised for giving the courts the ability to impose their own views of the law without adequate checks from other branches of government. However, it plays an important role in ensuring that each branch of government recognises the limits of its power, protecting civil rights and liberties, and setting appropriate limits on democratic government.
| Characteristics | Values |
|---|---|
| Judicial review is a distinctive feature of US constitutional law | The federal judiciary has reviewed the constitutionality of legislation enacted by Congress since the early days of the republic |
| The power of judicial review | The power of federal courts to test federal and state legislative enactments and other actions by the standards of what the Constitution grants and withholds |
| Critics of judicial review | Richard Dobbs Spaight, Robert Yates, Thomas Jefferson |
| Supporters of judicial review | James Iredell, John Marshall, James Madison, Alexander Hamilton |
| The Supreme Court's role | The highest court in the land, it is the court of last resort for those seeking justice |
| Judicial review and civil rights | The Supreme Court protects civil rights and liberties by striking down laws that violate the Constitution |
| Judicial review and democracy | The Supreme Court sets limits on democratic government by ensuring that popular majorities cannot pass laws that harm minorities or take undue advantage of them |
| Judicial review and executive orders | The federal judiciary has the authority to review the actions of the executive branch, including executive orders |
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What You'll Learn
Judicial review's critics and supporters
Judicial review is one of the distinctive features of United States constitutional law. It is the power of the federal courts to declare that federal or state government actions violate the Constitution. While the Constitution does not expressly grant federal courts this power, the concept was already established at the time of the Founding.
One of the first critics of judicial review was Richard Dobbs Spaight, a signer of the Constitution. In a correspondence with Supreme Court Justice James Iredell, Spaight wrote of his disapproval of the doctrine:
> "I do not pretend to vindicate the law, which has been the subject of controversy: it is immaterial what law they have declared void; it is their usurpation of the authority to do it, that I complain of, as I do most positively deny that they have any such power; nor can they find anything in the Constitution, either directly or impliedly, that will support them, or give them any color of right to exercise that authority."
Another early critic was Robert Yates, a delegate to the Constitutional Convention from New York, who argued during the ratification process in the Anti-Federalist Papers that the courts would use the power of judicial review loosely to impose their own views about the "spirit" of the Constitution.
Thomas Jefferson also expressed his opposition to the doctrine of judicial review in 1820, writing:
> "You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control."
In recent times, critics of judicial review have included Ryan Cooper, the managing editor of the *American Prospect*. Cooper and others who would eliminate judicial review make their case as it pertains to the actions of elected officials. They argue that the popular political process would be enough to ensure compliance with the Constitution.
On the other hand, supporters of judicial review argue that it is essential for protecting minority rights. Alexander Hamilton, in Federalist No. 78, outlines why judicial review was intended and essential:
> "The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between 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, the intention of the people to the intention of their agents."
Chief Justice Marshall also rejected a narrow interpretation of judicial review, stating:
> "A case in law or equity consists of the right of one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends upon the construction of either... Let the nature and objects of our Union be considered: let the great fundamental principles on which the fabric stands, be examined: and we think, the result must be, that there is nothing so extravagantly absurd, in giving to the Court of the nation the power of revising the decisions of local tribunals, on questions which affect the nation, as to require that words which import this power should be restricted by a forced construction."
In addition, while judicial review was not mentioned in the Constitution, it appears that those who framed and ratified the Constitution were aware of the concept and that some favored granting courts that power. Early Supreme Court Justices also seem to have assumed the existence of judicial review.
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The Supreme Court's power
The Supreme Court is the highest court in the United States, and its power of judicial review is one of its most important and distinctive features. This power allows the Court to declare a Legislative or Executive act in violation of the Constitution, and while it is not explicitly mentioned in the Constitution, it has been assumed and exercised by the Court since its early days.
Supporters of judicial review argue that it is necessary to protect civil rights and liberties and to ensure that the government recognises the limits of its power. Alexander Hamilton, in the Federalist Papers, defended the doctrine, stating that the interpretation of the laws is the "proper and peculiar province of the courts". He argued that the Constitution is the fundamental law that judges must uphold, even if it conflicts with statutes enacted by the legislative body.
However, critics of judicial review, including Thomas Jefferson, have expressed concern that it places too much power in the hands of judges, who are not subject to the same electoral control as other government functionaries. They argue that the courts can use this power to impose their own views and that there is no adequate check on their authority from other branches of government.
Despite these criticisms, the Supreme Court's power of judicial review has had a significant impact on American society. It has been used to strike down laws that violate the Constitution, protect minorities from harmful legislation, and define the scope of presidential powers. The Court's decisions have influenced not just lawyers and judges but also the lives of all Americans, shaping the country's constitutional system of government.
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The Constitution's silence
Thomas Jefferson, in 1820, also expressed his opposition to judicial review, fearing that it placed too much power in the hands of judges, who were not accountable to the electorate. He believed that the Constitution intended for all departments to be co-equal and co-sovereign.
However, supporters of judicial review, including Chief Justice John Marshall, argued that it was necessary to protect against infringements on the Constitution. In the Virginia convention, Marshall stated that if Congress passed a law not warranted by the powers enumerated in the Constitution, it would be up to the judges to declare it void and protect the Constitution. Alexander Hamilton, in the Federalist Papers, defended judicial review, stating that the interpretation of the laws is the proper role of the courts, and if there is a conflict between a law and the Constitution, the Constitution ought to be preferred.
While the Constitution does not explicitly grant federal courts the power to declare government actions unconstitutional, the historical record suggests that those who framed and ratified the Constitution were aware of the concept of judicial review, and some favored granting courts that power. The Supreme Court first formally embraced the doctrine of judicial review in the 1803 case of Marbury v. Madison, establishing that an Act of Congress contrary to the Constitution could not stand.
In conclusion, the Constitution's silence on judicial review has led to differing interpretations, with critics warning of judicial overreach and supporters emphasizing the need for judicial protection of constitutional principles. The doctrine of judicial review has since become a distinctive feature of United States constitutional law, shaping the country's political landscape and the balance of power between the branches of government.
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The Founding Fathers' awareness
The Founding Fathers were aware of the concept of judicial review, and some even favoured granting courts the power to exercise it. The concept was already established at the time, with the Privy Council employing a limited form of judicial review to review colonial legislation and its validity under colonial charters.
Alexander Hamilton, for instance, argued in favour of the doctrine in the Federalist Papers, stating that the interpretation of the laws is the "proper and peculiar province of the courts". James Madison and Alexander Hamilton also asserted the power of judicial review in their campaign for ratification.
However, the Founding Fathers also had concerns about the potential for judicial overreach and the imposition of the courts' own views. Robert Yates, a delegate to the Constitutional Convention from New York, argued that the courts would use the power of judicial review loosely to impose their views about the "spirit" of the Constitution. Thomas Jefferson also expressed his opposition to the doctrine, warning that it would place the country "under the despotism of an oligarchy".
The Founding Fathers envisioned a system of checks and balances, with the people ultimately retaining the authority to rein in the Supreme Court and curb its power of judicial review if necessary. They believed in the importance of judicial restraint and deference to elected legislatures, reflecting their commitment to a significant democratic element within the Constitution.
In summary, while the Founding Fathers were aware of judicial review and its potential benefits, they also recognised the need for restraint and the preservation of the people's ultimate authority in the democratic process.
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Judicial review's global influence
Judicial review is the power of a country's courts to examine the actions of the legislative, executive, and administrative arms of the government to determine whether such actions are consistent with the constitution. If an action is deemed inconsistent, it is declared unconstitutional and null and void. Judicial review has been a distinctive feature of United States constitutional law, with its influence extending beyond America's borders.
The influence of judicial review, as practiced in the United States, has had varying degrees of impact internationally. During the 19th and early 20th centuries, Latin America was the region most noticeably influenced, with several nations adopting it as a principle in their constitutions. On the other hand, most European nations rejected it as incompatible with the prevailing theory of separation of powers. Countries like Germany, Austria, and Switzerland were marginally influenced by the American experience and developed their own variants.
The postwar constitutions of Japan, West Germany, and Italy were strongly influenced by the United States, and judicial review has worked effectively in these countries. Recent experience suggests that judicial review functions optimally in advanced, middle-class societies committed to the idea of limited government.
Judicial review has emerged as a governing principle in some nations since World War II, serving as a response to the excesses of prewar popular democracies. It has been observed that domestic courts play a crucial role in upholding the rule of law, democratic values, and checking the power of transnational governance regimes.
Strategic explanations for the adoption of judicial review suggest that it is a tool used by elites to sustain their influence, particularly during constitutional transitions from authoritarianism to democracy. This perspective highlights how judicial review can be employed by organized minorities to maintain and restore their influence in domestic politics.
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Frequently asked questions
Judicial review is the power of the courts to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution.
Judicial review is now one of the distinctive features of US constitutional law. It gives the courts the ability to declare government actions unconstitutional and impose their own views of the law, without an adequate check from any other branch of government.
Some critics of judicial review, including Richard Dobbs Spaight and Thomas Jefferson, argue that it places too much power in the hands of judges, who may use it to impose their own views and interests.
