Simone Lawson
Judicial review refers to the power of courts to interpret the law and overturn any legislative or executive actions that are inconsistent with the law. The constitutional basis for judicial review can be found in Articles III and VI of the US Constitution, which vest judicial power in the Supreme Court and require judges to uphold the Constitution as the supreme law of the land. While the concept of judicial review was already established at the time of the Constitution's framing, the power of judicial review is not explicitly mentioned in the Constitution. However, scholars argue that the Framers expected and welcomed judicial review, and it has since become a distinctive feature of US constitutional law.
| Characteristics | Values |
|---|---|
| The power of courts to interpret the law | The courts interpret the law and overturn any legislative or executive actions that are inconsistent with the law |
| The role of the Supreme Court | The Supreme Court is the highest court in the land and is the court of last resort for those seeking justice |
| Ensuring recognition of limits of power | The Supreme Court ensures that each branch of the government recognizes the limits of its power |
| Protection of civil rights and liberties | The Supreme Court protects civil rights and liberties by striking down laws that violate the Constitution |
| Setting limits on democratic government | The Supreme Court ensures that popular majorities cannot pass laws that harm or take undue advantage of unpopular minorities |
| Ultimate authority in determining what is constitutional | The judicial branch holds the ultimate authority in determining what is constitutional |
| Countermajoritarian force | The judicial branch, whose personnel are not subject to prevailing political climates or special interests, can interpret laws and executive actions according to the Constitution |
| Seriousness of purpose | Judicial review decisions should demonstrate seriousness of purpose in attempting to understand the Constitution |
| Selflessness | Judicial review decisions should demonstrate personal and institutional selflessness |
| Correcting errors | The system provides that future judges may correct the errors of their predecessors |
| Basis in constitutional text | The Supremacy Clause expressly states that a form of judicial review exists |
| Basis in Articles III and VI | Article III, Section 1 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 VI establishes the Constitution as the supreme law of the land |
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What You'll Learn
Judicial review's constitutional basis
Judicial review is the power of the courts to interpret the law and overturn any legislative or executive actions that are inconsistent with the law. The constitutional basis for judicial review is derived from Articles III and VI of the Constitution.
Article III, Section 1 of the Constitution, also known as the Vesting Clause, establishes the federal judiciary and 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 provision vests the judicial power in the Supreme Court and grants it the authority to hear cases involving the interpretation and application of federal law and the Constitution.
Article VI of the Constitution, also known as the Supremacy Clause, establishes the Constitution as the supreme law of the land. It states that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." This clause requires that all laws passed in the United States must conform to the Constitution, and it gives the courts the authority to determine the legitimacy of acts of the executive and legislative branches, ensuring that they comply with constitutional principles.
While the phrase "judicial review" is not explicitly mentioned in the Constitution, the Framers of the Constitution were aware of the concept and expected judicial review to play a role in interpreting and enforcing the Constitution. The Supreme Court, as the highest court in the land, has the power of judicial review to ensure that each branch of government recognizes the limits of its power and protect the civil rights and liberties guaranteed by the Constitution.
The power of judicial review has been defended by Chief Justice John Marshall, who established it as inherent in a written constitution. However, it has also been criticized for potentially making the judiciary superior to the legislature in terms of law-making power. Debates over the proper extent of judicial review are ongoing and central to discussions about the role of the Supreme Court in the United States.
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The Supreme Court's role
The Supreme Court plays a crucial role in the constitutional system of government. As the highest court in the United States, it serves as the final arbiter of justice and wields the power of judicial review to maintain the balance of power across all branches of government.
The Supreme Court's authority to conduct judicial reviews stems from Article III, Section 1 of the Constitution, which states, "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 provision establishes the Supreme Court as the pinnacle of the federal judiciary, with the power to review and interpret the law.
The Court's role in judicial review is twofold. Firstly, it can declare a Legislative or Executive act in violation of the Constitution, thus ensuring that each branch of government respects the limits of its power. This power is not explicitly mentioned in the Constitution but is derived from the Supremacy Clause, which establishes the Constitution as the supreme law of the land. The Supremacy Clause requires judges in every state to adhere to the Constitution, even if it contradicts state laws or statutes.
Secondly, the Supreme Court protects civil rights and liberties by striking down laws that violate the Constitution. This aspect of the Court's role ensures that popular majorities cannot enact laws that infringe on the rights of minorities. The Court's decisions in this regard have had a significant impact on society, influencing not just legal professionals but also the lives of all Americans.
The Supreme Court's power of judicial review is not without its critics. Some have argued that the Court has, at times, distorted the concept of judicial review to usurp the legislature's policymaking role. For example, in the Dred Scott v. Sanford case in 1857, the Court's decision prompted President Abraham Lincoln to express concern about the Court's potential to irrevocably fix the policy of the government, undermining the people's sovereignty.
In conclusion, the Supreme Court's role in judicial review is essential to maintaining the checks and balances within the government and safeguarding the rights and liberties enshrined in the Constitution. While the Court's interpretations and decisions may be influenced by the prevailing societal values and the personalities of the judges, the power of judicial review remains a cornerstone of the American constitutional system.
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Federal judiciary establishment
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 favoured granting courts that power. Practically all of the Framers who expressed an opinion on the issue welcomed the existence of court review of the constitutionality of legislation.
Article III of the Constitution establishes the federal judiciary. Article III, Section I 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." The Constitution establishes the Supreme Court but permits Congress to decide how to organise it. Congress first exercised this power in the Judiciary Act of 1789. This Act created a Supreme Court with six justices and established the lower federal court system.
The Supreme Court plays a very important role in the constitutional system of government. As the highest court in the land, it is the court of last resort for those seeking justice. Due to its power of judicial review, it plays an essential role in ensuring that each branch of government recognises the limits of its own power. It protects civil rights and liberties by striking down laws that violate the Constitution. It also sets appropriate limits on democratic government by ensuring that popular majorities cannot pass laws that harm or take undue advantage of unpopular minorities.
The doctrine of judicial review holds that the courts are vested with the authority to determine the legitimacy of the acts of the executive and legislative branches of government. The legitimacy of such judicial review has been established through the supremacy clause of the Constitution, which requires that all laws passed in the United States must conform to the Federal Constitution. Judicial review also provides a powerful countermajoritarian force, ensuring that one governmental branch interprets laws and executive actions according to the Constitution, rather than prevailing political climates or special interests.
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Judicial review's historical context
Judicial review is the power of courts to interpret the law and overturn any legislative or executive actions that are inconsistent with the law. 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. There were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions. Practically all of the Framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation.
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. The only expressed opposition to judicial review came from Mercer, with a weak seconding from Dickinson. Mr. Mercer disapproved of the doctrine that the judges, as expositors of the Constitution, should have the authority to declare a law void. He thought laws ought to be well and cautiously made and then be uncontrollable. Dickinson was strongly impressed with Mercer's remark and thought no such power ought to exist, but he was at a loss for what expedient to substitute.
The constitutional basis for judicial review can be found in Articles III and VI. Article III, Section 1 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 VI states that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." While these sections vest the judicial power in the Supreme Court, they do not explicitly mention the phrase "judicial review".
The legitimacy of such judicial review has been established through the supremacy clause of the Constitution, which requires that all laws passed in the United States must conform to the Federal Constitution. This determination could hardly be objective if made by the same body that enacted the law in question. Judicial review also provides a powerful countermajoritarian force, ensuring that the changing views of a majority do not undermine fundamental values such as freedom of speech, freedom of religion, and due process of law.
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Judicial review's critics
Judicial review is a fundamental principle of the US system of government, in which the Supreme Court can declare a Legislative or Executive act in violation of the Constitution. However, critics of judicial review have emerged over the years, with some arguing that it is anti-democratic and goes against the principle of majority rule.
One of the main criticisms of judicial review is that it empowers unelected judges to declare the acts of popularly elected officials unconstitutional. This is seen by some as a violation of the popular political process, which should be sufficient to ensure compliance with the Constitution. Critics argue that the power to interpret laws and executive actions should be subject to the prevailing political climate and the will of the majority. In response, supporters of judicial review argue that it is necessary to protect minority rights and ensure that popular majorities do not pass laws that harm or take advantage of unpopular minorities.
Another criticism is that the Constitution does not explicitly grant federal courts the power to declare government actions unconstitutional. While the concept of judicial review was established at the time of the Founding and was assumed by many Framers to be a part of the Constitution, it is not expressly mentioned in the text. Critics argue that the Framers did not intend for the judiciary to have this power, and that it goes beyond the intended role of the courts in interpreting and applying the law.
Some critics, such as Ryan Cooper, argue that judicial review was never intended to be part of the Constitution and that it represents a form of judicial activism that exceeds the proper role of the judiciary. Cooper and others claim that eliminating judicial review would ensure that the actions of elected officials are subject to the will of the people, rather than the interpretation of unelected judges. They argue that the political process is sufficient to hold elected officials accountable and that judicial review can interfere with the democratic process.
Overall, critics of judicial review argue that it undermines majority rule, exceeds the intended powers of the judiciary, and can lead to judicial activism that interferes with the political process. However, supporters of judicial review counter that it is essential for protecting minority rights, ensuring government accountability, and maintaining the balance of powers between the branches of government.
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Frequently asked questions
Judicial review is the power of the courts to interpret the law and overturn any legislative or executive actions that are inconsistent with the law.
The constitutional basis for judicial review can be found in Articles III and VI of the US Constitution. Article III, Section I 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 VI establishes the Constitution as the "supreme Law of the Land".
No, the phrase "judicial review" does not appear in the US Constitution. However, certain sections vest the judicial power in the Supreme Court and declare judges bound to the Constitution.
The Supreme Court is the highest court in the US and is the court of last resort for those seeking justice. It has the power to declare a Legislative or Executive act in violation of the Constitution.
