Isabella Carter
Judicial review is the power of the judiciary to determine whether a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a state constitution, or the United States Constitution. While the U.S. Constitution does not explicitly grant federal courts the power to declare government actions unconstitutional, the authority for judicial review has been inferred from its structure, provisions, and history. This power has been deemed an implied power derived from Article III and Article VI of the U.S. Constitution, with the Supreme Court playing a pivotal role in ensuring that other branches of government adhere to the Constitution.
| Characteristics | Values |
|---|---|
| Judicial review is a 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 |
| The U.S. Constitution does not | Explicitly define the power of judicial review |
| The power of judicial review has been | Inferred from the structure, provisions, and history of the Constitution |
| The Constitution is the | Fundamental law of the United States |
| Judicial review is a | Check and balance on the legislative and executive branches |
| Judicial review is | Not an explicit power given to the courts |
| Judicial review is | An implied power |
| Judicial review is | One of the distinctive features of United States constitutional law |
| Judicial review was established in | Marbury v. Madison, the first Supreme Court decision to strike down an act of Congress as unconstitutional |
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What You'll Learn
Judicial review is not an express power
Judicial review is the idea that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judiciary. It is a fundamental principle of the US system of government and one of the distinctive features of US constitutional law. The US Constitution does not explicitly grant federal courts the power to declare government actions unconstitutional. The text of the Constitution does not contain a specific reference to the power of judicial review.
The power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI of the US Constitution. 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." The judicial power shall extend 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.
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.
Two landmark decisions by the US Supreme Court served to confirm the inferred constitutional authority for judicial review in the United States. 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. The second landmark decision was Marbury v. Madison, the first Supreme Court decision to strike down an act of Congress as unconstitutional.
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Judicial review is an implied power
Judicial review is a fundamental idea in the US system of government. It holds that the actions of the executive and legislative branches are subject to review and possible invalidation by the judiciary. This allows the Supreme Court to ensure that the other branches of government abide by the Constitution.
The US Constitution does not explicitly grant federal courts the power to declare government actions unconstitutional. The text of the 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. Article III 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." Article VI establishes the Constitution as the "supreme Law of the Land."
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. Several instances were known of state courts invalidating state legislation as inconsistent with state constitutions. Practically all of the Framers who expressed an opinion on the issue welcomed the existence of court review of the constitutionality of legislation.
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 Court performed judicial review of the plaintiff's claim that the carriage tax was unconstitutional. The second landmark case was Marbury v. Madison in 1803, which is often cited as the case that established the power of judicial review. This was the first Supreme Court decision to strike down an act of Congress as unconstitutional.
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Judicial review's historical context
Judicial review is the idea that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judiciary. The power of judicial review is a distinctive feature of United States constitutional law, despite not being explicitly mentioned in the Constitution. The power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI of the U.S. Constitution.
The historical record suggests that those who framed and ratified the Constitution were aware of judicial review and that some favoured granting courts that power. 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 welcomed the existence of court review of the constitutionality of legislation. The only expressed opposition to judicial review came from Mercer, with a weak seconding from Dickinson.
Two landmark decisions by the U.S. Supreme Court served to confirm the inferred constitutional authority for judicial review in the United States. 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 judicial review of the plaintiff's claim that the carriage tax was unconstitutional. The second landmark case was Marbury v. Madison, the first Supreme Court decision to strike down an act of Congress as unconstitutional.
After World War II, many countries felt pressured to adopt judicial review due to the influence of U.S. constitutional ideas, particularly the idea that a system of constitutional checks and balances is an essential element of democratic government.
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Judicial review's constitutional basis
Judicial review is the idea that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judiciary. It is a fundamental principle of the US system of government and one of the distinctive features of US constitutional law. 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 or grant federal courts 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.
Article III, also known as the Vesting Clause, 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."
Article VI, also known as the Supremacy Clause, states:
> "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."
The Framers of the Constitution were aware of judicial review, and some favored granting courts that power. The concept of judicial review was already established at the time of the Founding. There were several instances of state court invalidation of state legislation as inconsistent with state constitutions. Practically all of the Framers who expressed an opinion on the issue welcomed the existence of court review of the constitutionality of legislation.
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. In 1803, Marbury v. Madison was the first Supreme Court decision to strike down an act of Congress as unconstitutional.
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Judicial review's scope
The scope of judicial review is the power of the judiciary to examine the constitutionality of legislative enactments, executive orders, and administrative decisions. Judicial review upholds the rule of law, protects individual rights, and maintains the balance of power.
In the United States, 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. The US Constitution does not explicitly define the power of judicial review, but this authority has been inferred from its structure, provisions, and history. Judicial review is considered an implied power derived from Article III and Article VI.
The scope of judicial review in the US includes the examination of laws, executive decisions, and governmental actions to determine their constitutionality. Courts may invalidate laws, acts, or governmental actions that are incompatible with a higher authority, such as the Constitution. For example, an executive decision may be invalidated for being unlawful, or a statute may be invalidated for violating the Constitution.
The US judicial system employs a mixed approach to judicial review, with some administrative decisions reviewed by district courts, others by courts of appeals, and others by specialized tribunals. Before a request for judicial review is filed, certain preliminary conditions, such as a complaint to the authority, must usually be fulfilled.
The scope of judicial review can vary between countries and even within different jurisdictions of a country. For example, in India, the scope of judicial review is narrower than in the US due to differences in constitutional provisions.
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Frequently asked questions
The power of judicial review is not explicitly mentioned in the US Constitution.
The power of judicial review is implied from the structure, provisions, and history of the Constitution.
The provisions relating to 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."
The judicial power extends to all cases "arising under this Constitution". As part of their inherent duty to determine the law, federal courts have the duty to interpret and apply the Constitution and to decide whether a federal or state statute conflicts with it.
Yes, 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.
