Judicial review means review done by an appropriate judge or a court of law on any statutory Acts that are enacted by the Legislature. The United States’s legal system has a separate branch of government which is commonly known as the “Separation of Powers”. These three branches consist mainly of Legislature – which makes the law; the Executive – which executes the law; and finally, the Judiciary – which consists of Courts (Federal, State and Supreme Courts etc.,). In this article, we will learn about the third branch.
The conventional usage of the term judicial review could be more accurately described as “constitutional review” because there also exists a long practice of judicial review of the actions of administrative agencies that require neither that courts have the power to declare those actions unconstitutional nor that the country has a written constitution.[1] Such “administrative review” assesses the allegedly questionable actions of administrators against standards of reasonableness and abuse of discretion.[2] While the U.S. Constitution does not explicitly define the power of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.[3]
Article III, Section 2, Clause 1:
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;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
“The legitimacy of such judicial review has been established through the supremacy clause of the Constitution, which requires that all laws passed in the United States must conform to the Federal Constitution, a determination which could hardly be objective if made by the same body that enacted the law in question. Further, the judicial review also provides a powerful counter-majoritarian force, so that the one governmental branch whose personnel are not subject to prevailing political climates or special interests can interpret laws and executive actions according to the Constitution.”[4]
LANDMARK JUDGEMENTS
- Marbury Vs. Madison[5] was a landmark S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes that they find to violate the Constitution of the United States.[6]
- In the case of Hylton Vs. United States,[7] contributed to the development of judicial review, which refers to the power of the court to overturn legislative or executive actions that are inconsistent with the law.[8] The case demonstrated the Supreme Court’s authority to determine the constitutionality of the carriage tax.[9]
The text of the Constitution does not contain a specific reference to the power of judicial review. [10] Rather, the power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI.[11] The court’s rulings established judicial supremacy in constitutional interpretation, gave force to the national supremacy clause of Article VI of the Constitution—which declared the Constitution the supreme law of the United States—and laid the foundation for the power of the federal government to intervene in the national economy by broadly interpreting its constitutional power to regulate interstate commerce.”[12]
Article VI reads as:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. … All executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.
[1] Judicial review | Definition, Forms, & Facts | Britannica [2] Ibid. [3] "The Establishment of Judicial Review". Findlaw [4] A B Rubin, Judicial Review in the United States, Louisiana Law Review, Vol 40, issue 1, 1979. Retrieved from: Judicial Review in the United States | Office of Justice Programs (ojp.gov) [5] Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). [6] Marbury v. Madison - Wikipedia [7] Hylton v. United States, 3 U.S. (2 Dall.) 171 (1796). [8] Hylton v. United States - Ballotpedia [9] Journal of the American Revolution, “Hylton v. U.S. and Alexander Hamilton’s Defense of Congressional Taxing Authority”< June 25, 2020. [10] Judicial review in the United States - Wikipedia [11] While the Constitution does not explicitly authorize judicial review, it also does not explicitly prohibit 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." Virginia Constitution of 1776 Archived 2008-06-04 at the Wayback Machine via Avalon Project at Yale Law School. [12] Constitutional law - Marbury v. Madison: Judicial Review | Britannica
