From Which Case Did the Supreme Court Derive the Power of Judicial Review?
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 law banning newspapers from printing data about sure political matters, courts would have the authorisation to rule that this law violates the First Amendment, and is therefore unconstitutional. State courts also have the ability to strike down their own land's laws based on the land or federal constitutions.
Today, we accept judicial review for granted. In fact, it is one of the main characteristics of government in the United States. On an almost daily footing, court decisions come down from around the country striking down state and federal rules as beingness unconstitutional. Some of the topics of these laws in contempo times include same sexual activity union bans, voter identification laws, gun restrictions, authorities surveillance programs and restrictions on abortion.
Other countries have too gotten in on the concept of judicial review. A Romanaian court recently ruled that a law granting immunity to lawmakers and banning certain types of speech against public officials was unconstitutional. Greek courts take ruled that certain wage cuts for public employees are unconstitutional. The legal organisation of the European Matrimony specifically gives the Court of Justice of the European Marriage the power of judicial review. The power of judicial review is besides afforded to the courts of Canada, Nihon, India and other countries. Clearly, the world trend is in favor of giving courts the ability to review the acts of the other branches of government.
However, it was not e'er and then. In fact, the idea that the courts have the power to strike downward laws duly passed by the legislature is not much older than is the United States. In the civil law system, judges are seen as those who employ the police force, with no power to create (or destroy) legal principles. In the (British) common law system, on which American law is based, judges are seen as sources of law, capable of creating new legal principles, and besides capable of rejecting legal principles that are no longer valid. Nevertheless, every bit Britain has no Constitution, the principle that a court could strike down a law as being unconstitutional was non relevant in United kingdom. Moreover, even to this day, Britain has an attachment to the idea of legislative supremacy. Therefore, judges in the Uk do not 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 by Baron de Montesquieu in the 17th century, but judicial review did not arise from it in forcefulness until a century later.
The principle of judicial review appeared in Federalist Paper #78, authored by Alexander Hamilton. Hamilton offset tending of the thought that legislatures should be left to enforce the Constitution upon themselves:
If it be said that the legislative torso are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to exist collected from any particular provisions in the Constitution. Information technology is non 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 keep the latter within the limits assigned to their authority
Hamilton further opined that:
A constitution is, in fact, and must be regarded past the judges, as a fundamental constabulary. Information technology therefore belongs to them to ascertain its meaning, as well as the meaning of whatsoever particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of grade, to be preferred; or, in other words, the Constitution ought to be 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 erstwhile.
He then came out and explicitly argued for the ability of judicial review:
Whenever a detail statute contravenes the Constitution, information technology will be the duty of the judicial tribunals to adhere to the latter and disregard the former.
The Marbury Decision
In spite of Hamilton's support of the concept, the power of judicial review was not written into the U.s. Constitution. Commodity III of the Constitution, in granting power to the judiciary, extends judicial power to various types of cases (such every bit those arising under federal law), but makes no annotate every bit to whether a legislative or executive activeness could be struck downward. Instead, the American precedent for judicial review comes from the Supreme Court itself, in the landmark conclusion of Marbury 5. Madison, 5 U.Southward. 137 (1803).
The story of Marbury is itself a fascinating study of political maneuvering. When Thomas Jefferson was elected equally third President in a victory over John Adams, he was the outset President who was not a member of the Federalist political 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 past attrition.
During his final hours in office, Adams appointed several federal judges, including William Marbury. The commission had not nonetheless been delivered when Jefferson was sworn in and Secretary of State James Madison refused to deliver the commissions to the judicial appointments of Adams. Marbury and others sued in the Supreme Court, seeking a writ of mandamus: an social club to compel Madison to evangelize the commissions duly created past Adams while he was President.
While it was adequately credible to all that the commission was perfectly valid and should have been delivered, Supreme Court Chief Justice John Marshall worried that a direct conflict between the Court and newly elected President Jefferson could have destabilizing consequences for the yet young and experimental government. Yet, Marshall could not very well rule that the commissions ought not to be delivered when it was apparent to about that they were proper.
Instead, Marshall and the Court decided the case on procedural grounds. The entire reason the case was in the Supreme Court in the first place was that the Judiciary Act of 1789 (Section xiii) allowed the Court the ability to issue writs of mandamus, such equally the one existence sought.
However, Article III, Section 2, Clause ii of the Constitution says:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Police and Fact, with such Exceptions, and under such Regulations as the Congress shall brand.
In other words, the Supreme Court can merely handle cases initially brought in the Supreme Court when those cases affect ambassadors, foreign ministers or consuls and when a country is a party. Otherwise, you lot can appeal your case to the Supreme Courtroom, just y'all cannot bring it there in the first instance. Every bit Marbury was non an ambassador, foreign minister or delegate and a state was not a party to the case, the Constitution did not allow the Supreme Courtroom to claim original jurisdiction over the case. Therefore, Marshall and the Court ruled, whether Jefferson and Madison acted properly in denying Marbury's committee cannot be decided by the Court. The example had to be dismissed since the Court had no jurisdiction over the example. The Judiciary Deed that allowed the Court to issue a writ in this case was unconstitutional and therefore void.
While the result favored Jefferson (Marbury never did get a federal estimate), the case is remembered for the terminal point. Information technology was the get-go time that a court of the U.s. had struck downwardly a statute equally being unconstitutional.
Expansion Subsequently Marbury
Since Marbury, the Supreme Court has greatly expanded the ability of judicial review. In Martin 5. Hunter's Lessee, 14 U.Southward. 304 (1816), the Court ruled that information technology may review state court civil cases, if they arise under federal or constitutional law. A few years afterward, information technology determined the same for state court criminal cases. Cohens five. Virginia, nineteen U.Southward. 264 (1821). In 1958, the Supreme Court extended judicial review to mean that the Supreme Courtroom was empowered to overrule any country activity, executive, judicial or legislative, if it deems such to be unconstitutional. Cooper v. Aaron, 358 U.South. 1 (1958). Today, at that place is no serious opposition to the principle that all courts, non just the Supreme Court (and indeed, not but federal courts) are empowered to strike downwards legislation or executive deportment that are inconsistent with the federal or applicable state Constitution.
Judicial Review: Touch
Information technology is difficult to overstate the effect 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 hands reach four digits. But a recap of some of the nigh important historical Court decisions should serve to demonstrate the bear on of judicial review.
In Brown v. Board of Pedagogy, 347 U.S. 483 (1954), the Supreme Court struck downwards land laws establishing separate public schools for blackness and white students on the grounds that they violated the "equal protection" clause of the Fourteenth Amendment.
In Gideon five. Wainwright, 372 U.S. 335 (1963), the Supreme Courtroom forced states to provide counsel in criminal cases for indigent defendants who were being tried for commission of a felony and could non afford their ain counsel.
In Loving v. Virginia, 388 U.S. one (1967), the Supreme Court struck down a Virginia statute that prohibited interracial marriage, also on equal protection grounds.
In Brandenburg v. Ohio, 395 U.Southward. 444 (1969), the Supreme Courtroom ruled that state criminal laws that punished people for incitement could not exist applied unless the speech in question was intended to and likely to, cause people to engage in imminent lawless action.
In Furman v. Georgia, 408 U.S. 238 (1972), the Supreme Court temporarily halted the death sentence in the U.s.a. past ruling that state capital punishment statutes were not practical consistently or fairly enough to laissez passer muster nether the 8th Subpoena.
In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court struck downwards land laws that fabricated abortion illegal. Though Roe and many after cases have walked a tight line in determining exactly how far the right to choose an ballgame extends, the basic thought that the right to cull an ballgame is protected as part of the right to privacy still stands as 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 campaign) on First Amendment grounds.
In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the Supreme Court struck down certain types of race-based preferences in state college admissions as violating the equal protection clause.
In Lawrence v. Texas, 539 U.Due south. 558 (2003), the Supreme Court struck downward sodomy laws in fourteen states, making aforementioned-sex sexual action legal in every U.South. state.
In Citizens United five. Federal Ballot Committee, 558 U.S. 310 (2010), the Supreme Court struck downwardly a federal election police that restricted spending on election advertising by corporations and other associations.
National Federation of Contained Concern 5. Sebelius (2012) (the "Obamacare" decision) was famous for upholding virtually of the Patient Protection and Affordable Care Act. However, it too struck down an chemical element of that law that threatened to withhold Medicaid funding from states that did not cooperate with the law, on the grounds that this was an unconstitutional violation of state sovereignty.
Though some of these decisions remain controversial, none of these decisions would have been possible without judicial review. In every instance (and countless others), the Courtroom used its power of judicial review to declare that an deed by a federal or state government was null and void considering it contradicted a constitutional provision. Information technology is this power that truly makes the courts a co-equal branch of government with the executive and legislative branches and allows information technology to defend the rights of the people against potential intrusions by those other branches.
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