Judicial review, one of the fundamental concepts of US form of government, is the idea that the actions of the executive and legislative organs of government are subject to scrutiny and possible revocation by the judiciary. Judicial review enables the Supreme Court to play a more active role in ensuring that the other branches of government obey the constitution. In nutshells, it is authority of the Supreme Court to decide whether a legislation or decision made by the federal legislative or executive branches, or any state court or agency, is constitutional?
The authority of judicial review is not specifically included in the text of the Constitution as adopted by Philadelphia Convention, neither is it added to the Constitution through amendment. Rather, the competence to declare the law unlawful has been regarded as an implied power coming from the Article III and Article VI of the US Constitution.
The judicial review of the government was established in the landmark judgment of Marbury v/s Madison (1803) the first Supreme Court decision to strike down the act of Congress as unconstitutional, with the famous line from Chief Justice John Marshall: “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.”
Historical Background of Judicial Review
Under the original provisions of the Constitution, established in 1787, the Supreme Court did not possess the authority of judicial review. This significant power was obtained in 1803 as a result of the historic decision Marbury v. Madison. The case was rooted in the divisions between the Federalist and Republican parties following the election of 1800. During this election, Thomas Jefferson (Republican) defeated President John Adams (Federalist), who was seeking a second term.
Even though Adams lost the election in November of 1800, his administration did not end until March of the following year. During this time, Adams appointed a number of federal judges to the bench.. Some of these appointments were made during the final hours of his presidency, earning the dubious title, ‘the Midnight Judges.‘
The Secretary of State had to officially deliver a commission before a judge could take office. Many of Adams’ commissions were not delivered before he left office since many of his appointments were made in the final days of his presidency. Thomas Jefferson, the new president, directed James Madison, his new Secretary of State, not to deliver the commissions.
William Marbury, who had been waiting for his commission, petitioned the Supreme Court to issue a writ of mandamus (an official order to a government officer) compelling Madison to give it. Under the terms of the Judiciary Act approved by Congress in 1789, Marbury claimed, the Supreme Court had the authority to issue the writ.
The question of whether the Supreme Court had jurisdiction to hear the case was at the heart of the constitutional issue. In cases that involve writs of mandamus, Section 13 of the Judiciary Act of 1789 gave the Supreme Court original authority. As a result, the Supreme Court would have had jurisdiction to consider Marbury’s case under the Judiciary Act. The Constitution, on the other hand, outlines the conditions in which the Supreme Court will rule and does not include mandamus cases. The Judiciary Act therefore attempted to give the Supreme Court jurisdiction that was not “warranted by the Constitution.”
Marshall’s opinion stated that in the Constitution, the people established a government of limited powers: “The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written….” The limits established in the Constitution would be meaningless “if these limits may at any time be passed by those intended to be restrained.” Marshall observed that the Constitution is “the fundamental and paramount law of the nation”, and that it cannot be altered by an ordinary act of the legislature. Therefore, “an act of the Legislature repugnant to the Constitution is void.”
The role of the courts, which is at the heart of the idea of judicial review, was then examined by Marshall… It would be an “absurdity”, said Marshall, to require the courts to apply a law that is void. Rather, it is the inherent power of the courts to interpret and apply the Constitution, as well as to determine whether a statute and the Constitution are in conflict….
J. Marshall further wrote that it is emphatically the province and duty of the Judiciary to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply….
Marshall stated that the courts are authorized by the provisions of the Constitution itself to “look into” the Constitution, that is, to interpret and apply it, and that they have the duty to refuse to enforce any laws that are contrary to the Constitution. Specifically, Article III provides that the federal judicial power “is extended to all cases arising under the Constitution.” Article VI requires judges to take an oath “to support this Constitution.” Article VI also states that only laws “made in pursuance of the Constitution” are the laws of the land. Marshall concluded: “Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.”
Expansion After Marbury
Since Marbury, the Supreme Court has greatly expanded the power of judicial review.
In Martin v. Hunter’s Lessee, 14 U.S. 304 (1816), the Court ruled that it may review state court civil cases, if they arise under federal or constitutional law.
A few years later, it determined the same for state court criminal cases. Cohens v. Virginia, 19 U.S. 264 (1821).
In 1958, the Supreme Court extended judicial review to mean that the Supreme Court was empowered to overrule any state action, executive, judicial or legislative, if it deems such to be unconstitutional. Cooper v. Aaron, 358 U.S. 1 (1958).
Today, there is no serious opposition to the principle that all courts, not just the Supreme Court (and indeed, not just federal courts) are empowered to strike down legislation or executive actions that are inconsistent with the federal or applicable state Constitution
Till date US Supreme Court held 158 Acts of Congress unconstitutional in whole or in parts while the number of State laws is 968.
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