A Brief Introduction on Judicial Review in the United States

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A Brief Introduction on Judicial Review in the United States Part I: A Brief Introduction on Judicial Review Judicial review is the doctrine in democratic theory under which legislative and executive actions are subject to review, and possible invalidation, by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority, such as the terms of a written constitution. Judicial review is an example of the functioning of separation of powers in a modern governmental system (where the judiciary is one of three branches of government).
This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from country to country and state to state. The power of courts of law to review the actions of the executive and legislative branches is called judicial review. Though judicial review is usually associated with the U. S. Supreme Court, which has ultimate judicial authority, it is a power possessed by most federal and state courts of law in the United States.
The concept is an American invention. Prior to the early 1800s, no country in the world gave its judicial branch such authority. Part II: Judicial review in the United States Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the constitution itself. At the federal level, there is no power of judicial review explicitly established in the United States Constitution, but the doctrine has been inferred from the structure of that document.
At the time of the 1787 Constitutional Convention, five of the thirteen States included some form of judicial review or judicial veto in their state constitutions. Delegates at the Convention, including South Carolina’s Charles Pinckney, spoke out against the doctrine of judicial review. The Constitution states in Article III: 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…. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be 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 law and fact, with such exceptions, and under such regulations as the Congress shall make.
In the United States, the supremacy of national law is established by Article VI, Clause 2, of the U. S. Constitution. Called the Supremacy Clause, it states that This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land. ” It goes on to say that, judges in every state shall be bound thereby. ” This means that state laws may not violate the U. S. constitution and that all state courts must uphold the national law.
State courts uphold the national law through judicial review. Famous case The famous case of Marbury v. Madison(1803) marked the first time the U. S. Supreme Court explicitly explained and justified judicial review. Writing for a unanimous Court, John Marshall, fourth Chief Justice of the U. S. , used syllogistic reasoning. Major premise: The Constitution is the supreme law of the land and judges take an oath to support it. Minor premise: It falls within the province of the judiciary to interpret the law. Conclusion: Judges must not unassailable.
In fact, only two decades later, Justice Gibson of the Pennsylvania Supreme Court expressed a powerful opposing view in Eakin v. Raub(1825). Other debates and controversies followed. But Marbury v. Madison has been ratified by time and practice and has become a cornerstone of the larger constitutional system Marbury, of course, stands only for the proposition that judges can declare acts of Congress invalid. In subsequent cases Marshall asserted that judges could also declare invalid executive orders or actions (Little v.
Barreme, 1804 ) and upheld the Judiciary Act of 1789, under which Congress gave the Supreme Cour power to review and reserve decisions upholding the constitutionality of state statutes (Martin v. Hunter’s Lessee, 1816;Cohens v. Virginia, 1821). Taken collectively, these cases provide federal judges with impressive tools for monitoring governmental actions, tools that they have not always been hesitant to use. Through the end of the 1990s, the Supreme Court has invalidated nearly 140 federal statutes and some 1,200 local laws .
State courts too, with their own power to strike down acts passed within their jurisdiction, are active monitors of their governments. One scholar estimates that state justices invalidate nearly 25 percent of all laws challenged in their court rooms. Through judicial review, state courts determine whether or not state executive acts or state statutes are valid. They base such rulings on the principle that a state law that violates the U. S. constitution is invalid. They also decide the constitutionality of state laws under state constitutions.
If, however, state constitutions contradict the U. S. Constitution, or any other national statute, the state constitution must yield. The highest state court to decide such issues is the state supreme court. While judicial review of state laws is clearly outlined in the supremacy clause, the Framers of the U. S. Constitution did not resolve the question of whether the federal courts should have this power over congressional and executive acts. During the early years of the Republic, the Supreme Court upheld congressional acts, which implied the power of judicial review.
But the key question was whether the Court had the power to strike down an act of Congress. The Supreme Court’s use of substantive due process brought charges of judicial activism,” which means that in determining whether laws would meet constitutional muster, the Court was accused of acting more as a legislative body than as a judicial body. Justice OLIVER WENDELL HOLMES JR. , in his famous dissenting opinion in Lochner, argued for judicial restraint,” cautioning the Court that it was usurping the function of the legislature. Administrative review & Constitutional review
The procedure for judicial review of federal administrative regulation in the United States is set forth by the Administrative Procedure Act although the courts have ruled such as in Bivens v. Six Unknown Named Agents[3] that a person may bring a case on the grounds of an implied cause of action when no statutory procedure exists. The power to strike down laws has been deemed an implied power, derived from Article III, and from Article VI, which declares that the Constitution is the supreme law of the land and the Judges of every state shall be bound thereby. No state or federal law may violate the U. S. Constitution. The foremost authority for deciding the constitutionality of federal or state law under the Constitution of the United States in cases which come before it is the Supreme Court of the United States, as decided in the case of Marbury v. Madison (1803). In Marbury the Supreme Court struck down a portion of the Judiciary Act of 1789 which had purported to change the Court’s original jurisdiction from what the Constitution described.
Although the Court continues to review the constitutionality of statutes, Congress and the states retain power to influence what cases come before the Court. For example, the Constitution at Article III, Section 2, gives Congress power to make exceptions to the Supreme Court’s appellate jurisdiction, and additionally states may choose to exercise sovereign immunity from lawsuits. The ultimate court for deciding the constitutionality of state law under state constitutions is normally the highest state appellate court, whose judgments are final in the absence of a federal question.
This court is usually called a state supreme court, but sometimes is known as a court of appeals. Even before Marbury, the doctrine of judicial review was specifically enshrined in some state constitutions, and by 1803 it had been employed in both state courts and federal courts in actions dealing with state statutes. In the federal system, courts may only decide actual cases or controversies; it is not possible to request the federal courts to review a law without at least one party having legal standing to engage in a lawsuit.
This principle means that courts sometimes do not exercise their power of review, even when a law is seemingly unconstitutional, for want of jurisdiction. In some state courts, such as the Massachusetts Supreme Judicial Court, legislation may be referred in certain circumstances by the legislature or by the executive for an advisory ruling on its constitutionality prior to its enactment (or enforcement). The U. S. Supreme Court seeks to avoid reviewing the Constitutionality of an act where the case before it could be decided on other grounds.
Justice Brandeis framed it thus (citations omitted) Part III:Pros and cons Although judicial review has now become an established part of constitutional law in the United States, there are some who disagree with the doctrine, or believe that it is unconstitutional. This is generally based on two grounds. First, the power of constitutional review is not specifically delegated to the Supreme Court anywhere in the Constitution. Along with this, the Tenth Amendment explicitly states that any power that is not delegated by the Constitution is reserved to the states, or people.
Secondly, it is the states alone that have the power to create this set of laws for the federal government follow, logically it is the states alone that have the power to interpret the meaning of these laws. Allowing the federal government to conduct judicial review allows them to interpret their own restrictions as they see fit, with no consent to the originating power. Although the Constitution does not explicitly authorize judicial review, it also does not explicitly prevent it, as did the Virginia Constitution of 1776.
That Virginia Constitution said: All power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised. ”[6] The extent of judicial review in the United States was discussed at the Constitutional Convention, and the Virginia Plan suggested a council of revision” which would have included the Supreme Court, and which would have been empowered to examine proposed new laws and could accept or reject them regardless of constitutionality.
However, under that proposed system, Congress could pass a bill over the council’s veto. The council of revision” proposed in the Virginia Plan was ultimately rejected in the Constitutional Convention, for fear that the Supreme Court would abuse its power, and the proposed council of revision” morphed into the Presidential veto. Thus, the courts were only empowered to strike down statutes for unconstitutionality. James Madison, the author of the Virginia plan, suggested narrowing the courts’ power of judicial review even further: References:
Courts, Judges,& Politics an Introduction to the Judicial Process,2002,by Walter F. Murphy, C. Herman Prichett, Lee Epstein, Published by McGraw-Hill Higher Education The American Legal System Perspectives, Politics, Process, and Policies, second edition, by Albert P. Melone & Allan Karnes(our text book) American Law Enforcement, 1980, by Folley,Vern L, Published by Allyn and Bacon http://en. wikipedia. org/wiki/Judicial_review http://en. wikipedia. org/wiki/Judicial_review_in_the_United_States Course: Anglo-American Legal System Name: Jenny (Wu Shuwen) Class of 2008: Law4 School ID#: 0081126024

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