- Judicial review in the United States
in terms of their lawfulness, or 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 judicial review explicit in the
United States Constitution, but the doctrinehas been inferred from that document. [ [http://supreme.lp.findlaw.com/constitution/article03/13.html "The Establishment of Judicial Review"] . " Findlaw".] At the time of the 1787 Constitutional Convention, five of the thirteen States included some form of judicial reviewor judicial veto in their state Constitutions. Delegates at 1787's Constitutional 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."
Since the 1803
legal case" Marbury v. Madison", the Supreme Court has understood that it has a power of judicial review, in order to apply the Constitution to particular cases. ["Marbury v. Madison", [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=5&page=137 5 US 137 (1803)] .] This does not mean, however, that the judiciary decides the meaning of the text of the Constitution. Article VI requires all public officials in the other branches of government to be bound "by oath or affirmation, to support this Constitution," and the officials of the other branches of government have almost always respected the Court's interpretations, even when disagreeing with them, on the premise that the Court's interpretations of the Constitution have been in good faith.
The procedure for judicial review of federal administrative regulation in the United States is set forth by the
Administrative Procedure Actalthough the courts have ruled such as in " Bivens v. Six Unknown Named Agents" that a person may bring a case on the grounds of implied cause of actionwhen no statutory procedure exists.
Although the power to strike down laws is not specifically listed in the Constitution, it has been deemed an implied power, derived from Article III quoted above, 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 is allowed to violate the U.S. Constitution.
The foremost authority for deciding the
constitutionalityof 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 1803 case of "Marbury v. Madison." 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 in cases which come before it, 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 immunityfrom 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 standingto 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 rulingon 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): ["
Ashwander v. Tennessee Valley Authority", [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=297&invol=288 297 U.S. 288] , 346-9 (1936) (Brandeis, concurring) (citing cases)] cquote|The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:
# The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.
# The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.
# The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.
# The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of… If a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.
# The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.
# The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.
# When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.
After the Court exercised its power of judicial review in the 1803 case of "Marbury v. Madison", it avoided striking down a federal statute during the subsequent fifty years, and would not do so again until the 1856 case of "
Dred Scott v. Sandford".See Menez, Joseph et al., " [http://books.google.com/books?id=PBamtI5ih3IC&pg=PA125&dq=%22first+time+the+court%22+and+%22judicial+review%22&num=100&sig=8GqyaBpwOXxnwW30Io23g32xKK4 Summaries of Leading Cases on the Constitution] ", page 125 (2004).]
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." [ [http://www.yale.edu/lawweb/avalon/states/va05.htm Virginia Constitution of 1776] via Avalon Project at Yale Law School.]
The extent of judicial review in the United States was discussed at the Constitutional Convention, and the
Virginia Plansuggested 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 Planwas 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:
Both proponents of judicial review, as well as its opponents note that any government based on a written constitution requires some mechanism to prevent laws from being passed that violate that constitution. Otherwise, the document would be meaningless, and the legislature, with the power to enact any laws whatsoever, would be the supreme arm of government. The two sides differ only in which mechanism should hold that power, either the states or the federal government. This concept was laid out by
Alexander Hamiltonin Federalist No. 78:
Thomas Jeffersonexpressed his deep reservations about the doctrine of judicial review:
In 1861, Abraham Lincoln touched upon the same subject, during his first inaugural address:
cquote| [T] he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes. [Lincoln, Abraham. [http://www.yale.edu/lawweb/avalon/presiden/inaug/lincoln1.htm First Inaugural Address] (March 4, 1861).]
tandard of review
In the United States, unconstitutionality is the "only" ground for a federal court to strike down a federal statute. Justice Washington, speaking for the Marshall Court, put it this way in an 1829 case:
If a state statute conflicts with a valid federal statute, then courts may strike down the state statute as a violation of the
Supremacy Clause. But a federal court may not strike down a statute absent a violation of Federal law or of the federal Constitution.
Moreover, a suspicion or possibility of unconstitutionality is not enough for American courts to strike down a statute.
Alexander Hamiltonexplained in Federalist 78that the standard of review should be "irreconcilable variance" with the Constitution. Antifederalists agreed that courts would be unable to strike down federal statutes absent a conflict with the Constitution. For example, Robert Yates, writing under the pseudonym "Brutus", asserted that "the courts of the general government [will] be under obligation to observe the laws made by the general legislature not repugnant to the constitution." [ [http://press-pubs.uchicago.edu/founders/documents/a3_2_2s2.html Brutus, no. 14 (28 Feb. – 6 Mar. 1788)] ]
These principles—that federal statutes can only be struck down for unconstitutionality and that the unconstitutionality must be clear—were very common views at the time of the framing of the Constitution. For example,
George Masonexplained during the constitutonal convention that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course." [ [http://press-pubs.uchicago.edu/founders/documents/v1ch10s10.html Two Records of the Federal Convention of 1787, at 78 (Max Farrand ed., Yale Univ. Press 1927) (1911)] .]
For centuries, the courts were relatively deferential to Congress. Justice Washington put it this way, in an 1827 case: "It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt." ["
Ogden v. Saunders", [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=25&invol=213 25 U.S. 213] (1827).]
Although judges usually adhered to this principle that a statute could only be deemed unconstitutional in case of a clear contradiction until the twentieth century, this
presumption of constitutionalityweakened somewhat during the twentieth century, as exemplified by the Supreme Court’s famous footnote four. Nevertheless, the federal courts have not departed from the principle that courts may only strike down statutes for unconstitutionality.
Marbury v. Madison
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