Principle of Judicial Review Relate to the Principle of Limited Government

Judicial Review

by Stephen Haas

Overview

Judicial review is the power of the courts to declare that acts of the other branches of government are unconstitutional, and thus unenforceable. For instance if Congress were to pass a police banning newspapers from printing information near certain political matters, courts would have the authorization to rule that this law violates the Kickoff Subpoena, and is therefore unconstitutional. State courts also have the power to strike downwards their own land'due south laws based on the state or federal constitutions.

Today, we take judicial review for granted. In fact, it is one of the primary characteristics of regime in the United States. On an well-nigh daily basis, court decisions come down from effectually the country striking downwardly state and federal rules every bit being unconstitutional. Some of the topics of these laws in recent times include same sexual practice marriage bans, voter identification laws, gun restrictions, government surveillance programs and restrictions on abortion.

Other countries have also gotten in on the concept of judicial review. A Romanian court recently ruled that a law granting immunity to lawmakers and banning certain types of speech confronting public officials was unconstitutional. Greek courts have ruled that certain wage cuts for public employees are unconstitutional. The legal system of the European Spousal relationship specifically gives the Court of Justice of the European Matrimony the power of judicial review. The power of judicial review is besides afforded to the courts of Canada, Japan, India and other countries. Conspicuously, the world trend is in favor of giving courts the power to review the acts of the other branches of government.

However, it was not always so. In fact, the thought that the courts accept the power to strike down laws duly passed past the legislature is not much older than is the United states of america. In the civil police force organization, judges are seen as those who apply the police, with no power to create (or destroy) legal principles. In the (British) common law system, on which American police is based, judges are seen as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid. Withal, as Britain has no Constitution, the principle that a court could strike downwards a police force as existence unconstitutional was not relevant in Britain. Moreover, fifty-fifty to this twenty-four hour period, United kingdom has an attachment to the idea of legislative supremacy. Therefore, judges in the United Kingdom practice non have the power to strike downward legislation.

History

The principle of judicial review has its roots in the principle of separation of powers. Separation of powers was introduced past Businesswoman de Montesquieu in the 17th century, but judicial review did not arise from it in strength until a century later on.

The principle of judicial review appeared in Federalist Newspaper #78, authored by Alexander Hamilton. Hamilton first tending of the idea that legislatures should be left to enforce the Constitution upon themselves:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the structure they put upon them is conclusive upon the other departments, information technology may exist answered, that this cannot be the natural presumption, where information technology is not to be collected from whatsoever detail provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to go on the latter inside the limits assigned to their authorisation

Hamilton further opined that:

A constitution is, in fact, and must be regarded by the judges, as a primal law. It therefore belongs to them to define its significant, likewise equally the significant of any particular act proceeding from the legislative body. If in that location should happen to be an irreconcilable variance betwixt the two, that which has the superior obligation and validity ought, of course, to exist preferred; or, in other words, the Constitution ought to exist preferred to the statute… [W]here the will of the legislature, declared in its statutes, stands in opposition to that of the people, alleged in the Constitution, the judges ought to be governed by the latter rather than the quondam.

He then came out and explicitly argued for the power of judicial review:

Whenever a particular statute contravenes the Constitution, information technology volition be the duty of the judicial tribunals to attach to the latter and disregard the erstwhile.

The Marbury Decision

In spite of Hamilton's support of the concept, the power of judicial review was not written into the United States Constitution. Article 3 of the Constitution, in granting power to the judiciary, extends judicial ability to diverse types of cases (such as those arising nether federal law), merely makes no comment equally to whether a legislative or executive action could exist struck down. Instead, the American precedent for judicial review comes from the Supreme Court itself, in the landmark decision of Marbury v. Madison, v U.S. 137 (1803).

The story of Marbury is itself a fascinating written report of political maneuvering. When Thomas Jefferson was elected as third President in a victory over John Adams, he was the first President who was not a member of the Federalist party. He wanted to purge Federalists from the judiciary by appointing non-Federalists to the bench at every opportunity. The Federalist judges were to then fade away by compunction.

During his last hours in part, Adams appointed several federal judges, including William Marbury. The commission had not yet been delivered when Jefferson was sworn in and Secretary of Land James Madison refused to evangelize the commissions to the judicial appointments of Adams. Marbury and others sued in the Supreme Courtroom, seeking a writ of mandamus: an social club to compel Madison to deliver the commissions duly created by Adams while he was President.

While it was adequately apparent to all that the commission was perfectly valid and should have been delivered, Supreme Court Chief Justice John Marshall worried that a directly conflict betwixt the Court and newly elected President Jefferson could have destabilizing consequences for the yet immature and experimental government. Nevertheless, Marshall could non very well dominion that the commissions ought not to be delivered when information technology was apparent to most that they were proper.

Instead, Marshall and the Court decided the case on procedural grounds. The entire reason the example was in the Supreme Court in the get-go identify was that the Judiciary Act of 1789 (Section 13) immune the Court the power to issue writs of mandamus, such as the i existence sought.

Withal, Article III, Section 2, Clause 2 of the Constitution says:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a Land shall exist a Political party, the Supreme Court shall have original Jurisdiction. In all the other Cases earlier mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

In other words, the Supreme Court can only handle cases initially brought in the Supreme Court when those cases affect ambassadors, strange ministers or consuls and when a state is a party. Otherwise, you can entreatment your case to the Supreme Court, but you lot cannot bring it there in the first case. As Marbury was non an ambassador, foreign government minister or consul and a state was not a party to the case, the Constitution did non allow the Supreme Court to claim original jurisdiction over the instance. Therefore, Marshall and the Court ruled, whether Jefferson and Madison acted properly in denying Marbury's commission cannot exist decided by the Court. The instance had to exist dismissed since the Courtroom had no jurisdiction over the case. The Judiciary Act that allowed the Court to issue a writ in this case was unconstitutional and therefore void.

While the result favored Jefferson (Marbury never did become a federal judge), the case is remembered for the terminal point. It was the first time that a court of the United States had struck down a statute every bit being unconstitutional.

Expansion After Marbury

Since Marbury, the Supreme Court has greatly expanded the power of judicial review. In Martin five. Hunter'south Lessee, xiv U.S. 304 (1816), the Court ruled that it may review state court civil cases, if they arise nether federal or constitutional constabulary. A few years later on, it determined the same for state court criminal cases. Cohens 5. Virginia, nineteen U.South. 264 (1821). In 1958, the Supreme Courtroom extended judicial review to hateful that the Supreme Court was empowered to overrule whatsoever state action, executive, judicial or legislative, if information technology deems such to exist unconstitutional. Cooper v. Aaron, 358 U.S. i (1958). Today, at that place is no serious opposition to the principle that all courts, not just the Supreme Court (and indeed, non only federal courts) are empowered to strike downward legislation or executive actions that are inconsistent with the federal or applicable state Constitution.

Judicial Review: Touch

It is hard to overstate the result that Marbury and its progeny have had on the American legal system. A comprehensive list of important cases that accept struck downwardly federal or state statutes would easily reach iv digits. But a epitomize of some of the well-nigh important historical Court decisions should serve to demonstrate the impact of judicial review.

In Chocolate-brown v. Board of Didactics, 347 U.S. 483 (1954), the Supreme Courtroom struck downwardly state laws establishing separate public schools for black and white students on the grounds that they violated the "equal protection" clause of the Fourteenth Amendment.

In Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court forced states to provide counsel in criminal cases for indigent defendants who were beingness tried for commission of a felony and could not afford their ain counsel.

In Loving v. Virginia, 388 U.Due south. i (1967), the Supreme Courtroom struck down a Virginia statute that prohibited interracial matrimony, also on equal protection grounds.

In Brandenburg v. Ohio, 395 U.Due south. 444 (1969), the Supreme Court ruled that country criminal laws that punished people for incitement could not be applied unless the speech in question was intended to and likely to, crusade people to engage in imminent lawless activity.

In Furman v. Georgia, 408 U.Southward. 238 (1972), the Supreme Court temporarily halted the death penalty in the The states by ruling that land capital punishment statutes were not applied consistently or fairly plenty to pass muster under the 8th Amendment.

In Roe five. Wade, 410 U.S. 113 (1973), the Supreme Court struck downward state laws that fabricated abortion illegal. Though Roe and many later cases have walked a tight line in determining exactly how far the right to choose an abortion extends, the basic idea that the right to choose an abortion is protected as office of the right to privacy still stands equally the police of the land.

In Buckley v. Valeo, 424 U.S. 1 (1976), the Supreme Court struck down spending limits on individuals or groups who wished to use their own money to promote a political candidate or message (though information technology upheld limitations on how much could be contributed directly to a entrada) on First Subpoena grounds.

In Regents of the University of California 5. Bakke, 438 U.South. 265 (1978), the Supreme Courtroom struck down sure types of race-based preferences in state college admissions as violating the equal protection clause.

In Lawrence v. Texas, 539 U.South. 558 (2003), the Supreme Court struck downwardly sodomy laws in xiv states, making same-sexual activity sexual activity legal in every U.S. land.

In Citizens United five. Federal Ballot Commission, 558 U.South. 310 (2010), the Supreme Court struck downward a federal election law that restricted spending on election advertizing past corporations and other associations.

National Federation of Independent Business 5. Sebelius (2012) (the "Obamacare" determination) was famous for upholding most of the Patient Protection and Affordable Care Act. However, it as well struck down an chemical element of that police force that threatened to withhold Medicaid funding from states that did not cooperate with the police, on the grounds that this was an unconstitutional violation of state sovereignty.

Though some of these decisions remain controversial, none of these decisions would take been possible without judicial review. In every example (and countless others), the Courtroom used its power of judicial review to declare that an human activity by a federal or land regime was cipher and void because it contradicted a constitutional provision. Information technology is this power that truly makes the courts a co-equal co-operative of authorities with the executive and legislative branches and allows it to defend the rights of the people against potential intrusions past those other branches.

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