Isabella Carter
Judicial review is the power of an independent judiciary or court of law to determine whether the acts of other components of the government are in accordance with the constitution. While the concept of judicial review is not explicitly mentioned in the US Constitution, it has been deemed an implied power derived from Article III and Article VI. Judicial review allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the Constitution. The power to declare laws unconstitutional was established in Marbury v. Madison, the first Supreme Court decision to strike down an act of Congress as unconstitutional. Judicial review is now an essential part of constitutional democracy in the United States and has been incorporated into constitutional democracies around the world.
| Characteristics | Values |
|---|---|
| Judicial review is the power of an independent judiciary or courts of law | The power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI of the U.S. Constitution |
| Judicial review allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the Constitution | The power of judges to declare laws unconstitutional was part of the system of separation of powers |
| The concept of judicial review was created during the founding of the United States | Judicial review did not spring from the brain of Chief Justice Marshall; the concept had been long known |
| Judicial review is not mentioned in the U.S. Constitution | Most constitutional experts claim that it is implied in Articles III and VI of the document |
| The judicial power of the federal courts of law must be used to protect and defend the supreme authority of the Constitution | Alexander Hamilton argued for judicial review by an independent judiciary as a necessary means to void all governmental action |
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What You'll Learn
Judicial review's constitutional basis
Judicial review is the power of an independent judiciary or court of law to determine whether the acts of other components of the government are in accordance with the constitution. It is a fundamental aspect of the US system of government, but its constitutional basis is contested.
The US Constitution does not explicitly mention or define the power of judicial review. However, the authority for judicial review has been inferred from the structure, provisions, and history of the Constitution, particularly Articles III and VI. Article III states that the judicial power of the United States shall be vested in the Supreme Court and inferior courts established by Congress. It grants the federal judiciary the power to make judgments in all cases pertaining to the Constitution, statutes, and treaties. Article VI emphasises the supremacy of the Constitution and the duty of judges to uphold it, implying the power to declare acts that violate the Constitution void.
The concept of judicial review was not a novel idea at the time of the Constitution's framing. It had been utilised in a limited form by the Privy Council to review colonial legislation, and several state courts had invalidated state legislation as inconsistent with state constitutions. During the Constitutional Convention, delegates expressed support for the idea that federal courts should have the power of judicial review, viewing it as a necessary check on the legislature and a protection against excessive exercises of power. George Mason, for instance, explained that judges could "declare an unconstitutional law void".
The landmark case of Marbury v. Madison in 1803 established judicial review at the federal level. Chief Justice John Marshall argued for the power of the judiciary to review and strike down acts of Congress that were inconsistent with the Constitution, famously stating, "It is emphatically the duty of the Judicial Department to say what the law is." This decision set a precedent for the Supreme Court's use of judicial review, which became an essential part of constitutional democracy in the United States.
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Judicial review's history
Judicial review is the legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or the Constitution of the country in question. While the US Constitution does not explicitly define the power of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.
The concept of judicial review was already established at the time of the Founding. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters. The historical record from the Founding and the early years of the Republic suggests that those who framed and ratified the Constitution were aware of judicial review, and that some favored granting courts that power. For example, George Mason explained during the constitutional convention that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course."
In 1796, Hylton v. United States was the first case decided by the Supreme Court involving a direct challenge to the constitutionality of an act of Congress, the Carriage Act of 1794, which imposed a "carriage tax". The Court performed a judicial review of the plaintiff's claim that the carriage tax was unconstitutional.
Judicial review of the government was established in the landmark decision of Marbury v. Madison, the first Supreme Court decision to strike down an act of Congress as unconstitutional. Since Marbury, judicial review has become a core feature of American constitutional law. While the doctrine is well established, some legal commentators have criticized judicial review, and some who support it debate its doctrinal basis or how it should be applied.
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Judicial review's relation to the separation of powers
Judicial review is the power of an independent judiciary or court of law to determine whether the acts of other components of the government are in accordance with the constitution. It is a fundamental concept in the US system of government, and one of the distinctive features of US constitutional law.
The US Constitution does not explicitly define or mention the power of judicial review. Instead, the power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI. Article III states that the judicial power of the US shall be vested in one Supreme Court and such inferior courts as Congress may establish. It also states that the judicial power shall extend to all cases in law and equity arising under the Constitution, the laws of the US, and treaties made. Article VI states that the judicial power of federal courts must be used to protect and defend the supreme authority of the Constitution against acts in government that violate or contradict it.
The concept of judicial review was created during the founding of the US and was specifically included in the constitutional governments of some of the original 13 American states, such as Massachusetts, New Hampshire, and New York. The power of judicial review was established in the landmark decision of Marbury v. Madison, the first Supreme Court decision to strike down an act of Congress as unconstitutional.
Judicial review is related to the separation of powers as it allows the judiciary to take an active role in ensuring that the other branches of government abide by the Constitution. The courts' power to declare laws unconstitutional acts as a check on the legislature, protecting against the excessive exercise of power. While it is the duty of the judiciary to interpret the law and decide which laws violate the Constitution, judges must be careful not to violate the Separation of Powers doctrine when engaging in judicial review. They must not usurp the legislative duty to create the law and must carefully strike the right balance when assessing the validity of executive agency actions.
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Judicial review's relation to legislative power
Judicial review is the power of an independent judiciary or court of law to determine whether the acts of other components of the government are in accordance with the constitution. It is a fundamental principle of the US system of government. Judicial review allows the Supreme Court to ensure that the other branches of government abide by the Constitution.
The US Constitution does not explicitly define the power of judicial review. However, the authority for judicial review has been inferred from the structure, provisions, and history of the Constitution. The power to declare laws unconstitutional has been deemed an implied power derived from Article III and Article VI of the US Constitution. Article VI implies that the judicial power of the federal courts of law must be used to protect and defend the supreme authority of the Constitution against acts in government that violate or contradict it.
The concept of judicial review was created during the founding of the United States and was specifically included in the constitutional governments of some of the original 13 American states, such as Massachusetts, New Hampshire, and New York. Judicial review is one of the distinctive features of United States constitutional law. It is the duty of the judiciary to interpret the law and decide which laws violate the Constitution. Judges and justices understand that they must not usurp the legislative duty to create the law.
The principle of judicial review was established in the landmark case of Marbury v. Madison, the first Supreme Court decision to strike down an act of Congress as unconstitutional. This case set a precedent for the Court's use of judicial review, which became an essential part of constitutional democracy in the United States. Judicial review is a check on the legislature, protecting against the excessive exercise of power.
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Judicial review's relation to democratic principles
Judicial review is the power of an independent judiciary, or courts of law, to determine whether the acts of other components of the government are in accordance with the constitution. Any action that conflicts with the constitution is declared unconstitutional and therefore nullified. Thus, the judiciary may check or limit the legislative and executive departments by preventing them from exceeding the limits set by the constitution.
The text of the US Constitution does not contain a specific reference to the power of judicial review. However, the power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI. The provisions relating to the federal judicial power in Article III state: "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." Article VI states that all officials of the federal and state governments, including all judicial officers, shall be bound by Oath or Affirmation to support the Constitution.
The concept of judicial review was created during the founding of the United States and was specifically included in the constitutional governments of some of the 13 original American states, such as Massachusetts, New Hampshire, and New York. Judicial review is not mentioned in the US Constitution, but most constitutional experts claim that it is implied in Articles III and VI of the document. Article III gives the federal judiciary the power to make judgments in all cases pertaining to the Constitution, statutes, and treaties.
The idea of judicial review is fundamental to the US system of government. It allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the Constitution. Judicial review enables the courts to act as a check on the legislature, protecting against the excessive exercise of power. This aligns the judiciary more closely with democratic principles by preventing it from acting as a check on democratically enacted legislation.
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Frequently asked questions
Judicial review is the power of an independent judiciary or court of law to determine whether the acts of other components of the government are in accordance with the constitution.
Judicial review is not mentioned in the US Constitution. However, most constitutional experts claim that it is implied in Articles III and VI of the document. Article III states that the federal judiciary has the power to make judgments in all cases pertaining to the Constitution, statutes, and treaties. Article VI implies that the judicial power of the federal courts of law must be used to protect and defend the supreme authority of the Constitution against acts in government that violate or contradict it.
Judicial review is considered fundamental to the US system of government. It allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the Constitution. It is also considered a check on the legislature, protecting against the excessive exercise of power.
The power of judicial review, as established in Marbury v. Madison, lacks a clear constitutional basis and was not part of the original design of the American governmental structure. The Supreme Court's primary function should be to interpret the law and resolve disputes, not to act as a legislative body by invalidating laws passed by Congress. Elected legislatures are also more accountable to the public than unelected judges, aligning the judiciary more closely with democratic principles.
