Malcolm Rivera
Judicial review is a fundamental principle of the US system of government, where the judiciary can review and invalidate the actions of the executive and legislative branches. The US Constitution does not explicitly mention the power of judicial review, but it has been inferred from the structure, provisions, and history of the Constitution, with the authority for judicial review deemed an implied power derived from Article III and Article VI. The Supreme Court, as the highest court in the land, has the ultimate power of judicial review, and plays a critical role in ensuring each branch of government recognises its limits, protecting civil rights and liberties, and setting limits on democratic government. The power of judicial review is not unique to the US, with many countries adopting the principle after World War II, influenced by US constitutional ideas.
| Characteristics | Values |
|---|---|
| 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 | The power to declare laws unconstitutional is derived from Article III and Article VI of the U.S. Constitution |
| The Supreme Court has the ultimate authority to decide whether statutes are consistent with the Constitution | The Supreme Court has final appellate jurisdiction in all cases arising under the Constitution |
| The Supreme Court plays a crucial role in ensuring that each branch of government recognizes its limits | The Supreme Court protects civil rights and liberties by striking down laws that violate the Constitution |
| The Supreme Court ensures that popular majorities cannot pass laws that harm or take advantage of unpopular minorities | The Supreme Court sets limits on democratic government |
| The Supreme Court has the power to declare a Legislative or Executive act in violation of the Constitution | The Supreme Court's power of judicial review was established in the landmark decision of Marbury v. Madison |
| The Constitution is the fundamental law of the United States | All judges are bound to follow the Constitution |
| Federal statutes are the law of the land only when they are "made in pursuance" of the Constitution | State constitutions and statutes are valid only if they are consistent with the Constitution |
| The Supreme Court has original jurisdiction to issue writs of mandamus | The Judiciary Act of 1789 gave the Supreme Court this power |
| The Supreme Court has the power to strike down state laws found to be in violation of the Constitution | The Supreme Court's power extends to cases involving treaties, ships on high seas, and navigable waterways |
| The Supreme Court has the power to decide whether to review a case | The Certiorari Act of 1925 gives the Court discretion in this matter |
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What You'll Learn
Judicial review is an implied power
Judicial review is a legal power that allows a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or the United States Constitution. While the US Constitution does not explicitly define the power of judicial review, the authority for judicial review has been inferred from its structure, provisions, and history.
The power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI of the US Constitution. Article III, also known as the judicial article, establishes the federal judiciary and outlines the scope of judicial power. It states that 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." This article gives the Supreme Court judicial power over "all Cases, in Law and Equity, arising under this Constitution", indicating that its main role is to decide if laws are constitutional.
Article VI of the Constitution, also known as the Supremacy Clause, establishes the Constitution as the "supreme Law of the Land." This means that the Constitution is the fundamental law of the United States, and all judges are bound to follow it. The power of judicial review is implied from this clause, as it is the inherent duty of the courts to determine the applicable law in any given case.
The concept of judicial review is fundamental to the US system of government, as it allows the Supreme Court to ensure that the actions of the executive and legislative branches are in line with the Constitution. This power was established in the landmark case of Marbury v. Madison in 1803, where the Supreme Court declared an Act of Congress unconstitutional for the first time.
The Supreme Court plays a crucial role in the constitutional system of government. Firstly, as the highest court in the land, it serves as the court of last resort for those seeking justice. Secondly, its power of judicial review ensures that each branch of government recognizes its own limits. Thirdly, it protects civil rights and liberties by striking down laws that violate the Constitution. Finally, it sets limits on democratic government, preventing popular majorities from passing laws that harm or take advantage of unpopular minorities.
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The Supreme Court's role in judicial review
The US Supreme Court is the highest court in the country and is the court of last resort for those seeking justice. It has the power of judicial review, which allows it to play a crucial role in ensuring that each branch of the government recognizes the limits of its power. The Supreme Court's role in judicial review involves interpreting the law and resolving disputes, as well as ensuring that the government's actions are in line with the Constitution.
The Supreme Court's power of judicial review is not explicitly mentioned in the text of the Constitution. However, it has been inferred from the structure, provisions, and history of the Constitution, particularly from Article III and Article VI. Article III, Section 1 of the Constitution vests the judicial power in the Supreme Court and inferior courts established by Congress. It states that "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 III, Section 2 further clarifies that the judicial power extends to all cases arising under the Constitution, laws of the United States, and treaties.
The Supreme Court's power of judicial review is essential for maintaining the system of checks and balances in the government. It ensures that the government's actions are in line with the Constitution and protects civil rights and liberties by striking down laws that violate constitutional provisions. The Court's decisions have a significant impact on society, shaping the interpretation and application of the Constitution.
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Landmark cases that established judicial review
The power of judicial review was established in the landmark case of Marbury v. Madison in 1803. In this case, William Marbury sued the new Secretary of State, James Madison, for withholding a commission as justice of the peace that had been issued to him by outgoing President John Adams.
The Supreme Court ruled that it could not order the surrender of the commission as the Judiciary Act of 1789, which would have empowered it to do so, was deemed unconstitutional. Chief Justice John Marshall established the principle of judicial review, stating:
> "It is emphatically the province and duty of the Judicial Department to say what the law is…If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law be in opposition to the Constitution… the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty."
The case of Marbury v. Madison established the right of the courts to determine the constitutionality of the actions of the other two branches of government. It also asserted the power of judicial review for the Supreme Court and lower courts, allowing them to declare legislation and executive actions inconsistent with the U.S. Constitution as unconstitutional and therefore null and void.
Another notable case is McCulloch v. Maryland (1819), which held that the Constitution gives the federal government certain implied powers. This case established two important principles for constitutional law: implied powers and federal supremacy.
Other landmark cases include:
- Brown v. Board of Education (1954): Overturned Plessy v. Ferguson and held that state laws requiring racially segregated schools violate the Equal Protection Clause of the Fourteenth Amendment.
- Schenck v. United States (1919): The Court held that certain speech could be restricted if it presented a "clear and present danger", creating the "clear and present danger" test.
- Dred Scott v. Sandford (1857): The Court ruled that Congress could not prohibit slavery in territories, and African Americans had no right to sue in federal court, concluding that people of African descent had none of the rights of citizens.
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Judicial review in other countries
Judicial review is the power of the courts of a country 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. If actions are deemed inconsistent, they are declared unconstitutional and therefore null and void.
Many countries have adopted judicial review in some form, especially after World War II due to the influence of US constitutional ideas. This includes countries like Germany, Italy, Japan, India, and South Korea, which have established special constitutional courts. France has a constitutional council, while the UK has accepted a robust form of judicial review in the context of the EU.
Some countries, like the US, employ a mixed system, where administrative decisions are reviewed by various courts, including specialized tribunals. Other countries, like Russia, have a mixed model where courts at all levels can review primary legislation and declare its constitutionality, but the decision only binds the parties to the lawsuit.
Legislative supremacy, or parliamentary sovereignty, is practiced in countries like Sweden, Finland, and the Netherlands, where the legislature has the final say on constitutional matters, and can override vetoes or change the constitution without the same high bars seen in the US system.
The first wave of judicial review can be traced to the Marbury v. Madison case in 1803, and it spread to Latin America and Europe during the 19th century. The second wave combines constitutional and administrative judicial review, assessing the constitutionality of legislative acts and scrutinizing the acts of administrative bodies.
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The impact of judicial review on democracy
Judicial review is the legal power of a court to determine if a statute, treaty, or regulation contradicts or violates the provisions of existing law, a State Constitution, or the United States Constitution. While the US Constitution does not explicitly define the power of judicial review, the authority for judicial review has been inferred from its structure, provisions, and history.
However, others argue that judicial review is necessary to enforce the limits of the Constitution and protect the rights of individuals against the government. It enables individuals to vindicate their rights in ways that parallel those commonly used against each other. Judicial review has been particularly important in protecting marginalized groups, such as racial and political minorities, and ensuring equal representation, as seen in the case of Brown v. Board of Education.
The debate around judicial review often revolves around the question of whether society is better off with an institution like the Supreme Court, which is immune from direct majoritarian control, to enforce the Constitution. While some argue that the concentration of power in the executive without checks and balances can lead to the rise of totalitarian regimes, others contend that judicial review undermines democracy by taking power away from the people.
Ultimately, the impact of judicial review on democracy is complex and multifaceted. While it can provide a safeguard for individual rights and enforce constitutional limits, it can also lead to judicial activism and policy-making that may not reflect the will of the majority.
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Frequently asked questions
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.
Judicial review is the 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 US Constitution.
The Supreme Court has the power of judicial review. It is the highest court in the land and is vested with the judicial powers of the government.
