Isabella Carter
Judicial review is a process that allows the judiciary to review and invalidate laws, acts, or governmental actions that are deemed incompatible with a higher authority. While the concept of judicial review was already established at the time of the US Constitution's founding, the US Constitution does not explicitly mention or define the power of judicial review. However, the authority for judicial review in the United States has been inferred from its structure, provisions, and history, with references made to it during the Constitutional Convention and state ratification conventions. Judicial review is considered one of the distinctive features of US constitutional law and plays a crucial role in ensuring that the other branches of government abide by the Constitution.
| Characteristics | Values |
|---|---|
| Judicial review in the US | The US Constitution does not explicitly define the power of judicial review, but it has been inferred from the structure, provisions, and history of the Constitution. |
| Judicial review in other countries | In some countries, only specialized constitutional courts can hear claims of unconstitutionality. |
| Judicial review and the Founding Fathers | The Founding Fathers made several references to the concept of judicial review, and some favored granting courts that power. |
| Judicial review and the Supreme Court | The Supreme Court has final appellate jurisdiction in all cases arising under the Constitution and can decide whether statutes are consistent with it. |
| Landmark cases | Marbury v. Madison was the first case where the Supreme Court struck down an act of Congress as unconstitutional. |
| Judicial review and the Separation of Powers | Judicial review is one of the checks and balances in the separation of powers, allowing the judiciary to supervise the legislative and executive branches. |
| Judicial review and state courts | In some states, legislation may be referred to the state Supreme Court for an advisory ruling on its constitutionality before enactment. |
| Judicial review and federal courts | Federal courts have a duty to interpret and apply the Constitution and to decide whether federal or state statutes conflict with it. |
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What You'll Learn
Judicial review's absence in the US Constitution
Judicial review is the power of the courts to examine the actions of the legislative, executive, and administrative arms of the government and determine whether such actions are consistent with the constitution. In the United States, judicial review is considered a fundamental part of the country's system of government.
However, it is notable that the US Constitution does not explicitly mention or define the power of judicial review. Instead, the authority for judicial review has been inferred from the structure, provisions, and history of the Constitution, particularly from Article III and Article VI. The Founding Fathers made several references to the concept of judicial review during the debates at the Constitutional Convention, and publications during the ratification process also asserted that the federal courts would have this power.
One of the earliest critics of judicial review was Richard Dobbs Spaight, a signer of the Constitution. In a correspondence with Supreme Court Justice James Iredell, Spaight expressed his disapproval of the doctrine, arguing that the courts were usurping authority that was not explicitly granted to them by the Constitution.
Despite the absence of an explicit mention in the Constitution, judicial review has become an established part of constitutional law in the United States. The Supreme Court, through landmark decisions such as Marbury v. Madison, has asserted its power to review and invalidate acts of Congress that are inconsistent with the Constitution. This power of judicial review is seen as essential to maintaining a system of constitutional checks and balances in the government.
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Judicial review's inferred authority in the US Constitution
Judicial review in the United States 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 US 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 concept of judicial review was already established at the time of the Founding Fathers. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters. There were also several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions. During the debates at the Constitutional Convention, the Founding Fathers made several references to the concept of judicial review. Publications by authors in at least twelve of the thirteen states asserted that under the Constitution, the federal courts would have the power of judicial review. There is no record of any opponent to the Constitution who claimed that the Constitution did not involve a power of judicial review.
Two landmark decisions by the US Supreme Court served to confirm the inferred constitutional authority for judicial review in the United States. In 1794, United States v. Yale Todd was the first Supreme Court case to find an act of Congress unconstitutional. However, there was not an official report of the case and it was not used as a precedent. 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 upheld the tax, finding it was constitutional.
The power of judicial review was first asserted in Marbury v. Madison, where Chief Justice John Marshall argued for judicial review of congressional acts. In this case, the Supreme Court struck down an act of Congress as inconsistent with the Constitution, with Marshall famously stating, "It is emphatically the duty of the Judicial Department to say what the law is." While there was no express warrant for Marshall's assertion of the power of judicial review in the actual text of the Constitution, its success rested on the Supreme Court's ruling and the absence of an effective political challenge.
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Judicial review's role in the separation of powers
Judicial review is a process that allows the judiciary to review and potentially invalidate the actions of the executive and legislative branches of government. It is a key feature of the separation of powers, a democratic theory that seeks to ensure that no branch of government can exert power over another without due process. The concept of judicial review was already established at the time of the US Constitution's framing, and it has been inferred from the structure, provisions, and history of the Constitution.
The US Constitution does not explicitly mention judicial review, but it is implied in Article III and Article VI, which outline the judicial power to review federal and state legislative enactments against the standards of the Constitution. The Founding Fathers made several references to the concept during debates at the Constitutional Convention, and supporters of ratification asserted the power of judicial review in their campaigns. Alexander Hamilton, for instance, wrote in The Federalist Papers that:
> "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."
The US Supreme Court's ruling in Marbury v. Madison in 1803 was a landmark decision that established the power of judicial review to enforce the separation of powers. Chief Justice John Marshall famously stated:
> "It is emphatically the duty of the Judicial Department to say what the law is."
Judicial review allows the judiciary to supervise the legislative and executive branches, ensuring they do not exceed their authority. It is a check on the powers of these branches, and while it is the duty of judges to interpret the law and decide which laws violate the Constitution, they must not create the law themselves. This is a delicate balance, particularly in administrative law, where judicial officials must assess the validity of executive agency actions without overstepping into lawmaking.
The US judiciary has been described as having unusually strong powers of judicial review compared to other countries. While the principle of judicial review is now generally accepted, it still has detractors, and supporters disagree about its doctrinal basis and application.
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Judicial review's history in the US
Judicial review in the United States 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 United States Constitution. While the US Constitution does not explicitly define or grant the federal courts the power of judicial review, the authority for judicial review has been inferred from its structure, provisions, and history.
The concept of judicial review was already established at the time of the Founding Fathers. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters. Several instances were known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions. The Founding Fathers made a number of references to the concept of judicial review during the debates at the Constitutional Convention. At least seven of the delegates to the convention, including Alexander Hamilton, John Blair Jr., George Wythe, and Edmund Randolph, had personal experience with judicial review because they had been lawyers or judges in state court cases involving judicial review.
The Federalist Papers, which were published in 1787–1788 to promote ratification of the Constitution, made several references to the power of judicial review. Both Madison and Hamilton asserted the power of judicial review in their campaign for ratification. Publications by over a dozen authors in at least twelve of the thirteen states asserted that under the Constitution, the federal courts would have the power of judicial review. There is no record of any opponent to the Constitution who claimed that the Constitution did not involve a power of judicial review.
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 upheld the tax, finding it was constitutional. In 1794, United States v. Yale Todd was the first Supreme Court case to find an act of Congress unconstitutional. However, there was no official report of the case and it was not used as a precedent.
Constitutional judicial review is usually considered to have begun with the assertion by John Marshall, fourth chief justice of the United States (1801–35), in Marbury v. Madison (1803), that the Supreme Court had the power to invalidate legislation enacted by Congress. There was, however, no express warrant for Marshall’s assertion of the power of judicial review in the actual text of the Constitution. Its success rested ultimately on the Supreme Court’s own ruling, plus the absence of effective political challenge to it.
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Judicial review's scope and procedure
Judicial review is a process that allows the judiciary to review and supervise the actions of the legislative, executive, and administrative branches of the government. It is a check on the powers of these branches to ensure they do not exceed their authority. While the concept of judicial review was established at the time of the Founding, the US Constitution does not explicitly mention or define it. However, the authority for judicial review has been inferred from its structure, provisions, and history.
The scope of judicial review varies between jurisdictions, and even within countries. In the United States, judicial review extends to all cases "in Law and Equity, arising under this Constitution", the Laws of the United States, and Treaties made, or which shall be made, under their Authority. Federal courts have the duty to interpret and apply the Constitution, ensuring that federal and state statutes do not conflict with it. If a conflict arises, the Constitution takes precedence, and the conflicting statute is treated as unenforceable.
There are several types of judicial reviews based on their scope and nature:
- Constitutional Judicial Review: This involves examining the constitutionality of legislative acts, executive orders, and administrative decisions.
- Statutory Judicial Review: Courts interpret and assess the validity of statutes or regulations, ensuring they are correctly applied and consistent with other legal provisions.
- Administrative Judicial Review: Courts review the decisions and actions of administrative agencies, checking for compliance with statutory mandates, procedural correctness, and the reasonableness of their decisions.
- Procedural Judicial Review: This focuses on whether the correct legal processes and procedures were followed in making a decision.
- Substantive Judicial Review: Courts evaluate the substance or content of laws and decisions for fairness, reasonableness, and adherence to principles of justice.
The procedure for judicial review may differ based on the country and the specific legal system. In the United States, judicial review is typically carried out by regular civil courts, although it may be delegated to specialised panels within these courts. Before a request for judicial review, certain preliminary conditions, such as a complaint to the authority, must usually be fulfilled.
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Frequently asked questions
No, the US Constitution does not explicitly mention judicial review. However, the authority for judicial review has been inferred from its structure, provisions, and 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 US Constitution. It is one of the checks and balances in the separation of powers.
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. Judicial review was also discussed in at least seven of the thirteen state ratifying conventions, and was mentioned by almost two dozen delegates.
Two landmark decisions by the US Supreme Court served to confirm the inferred constitutional authority for judicial review. 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 first Supreme Court decision to strike down an act of Congress as unconstitutional was in Marbury v. Madison.
