If a Law Is Unconstitutional the Supreme Court Can

National Paralegal College

Judicial Review

by Stephen Haas

Overview

Judicial review is the ability of the courts to declare that acts of the other branches of government are unconstitutional, and thus unenforceable. For example if Congress were to pass a police banning newspapers from printing information almost certain political matters, courts would have the potency to rule that this law violates the Kickoff Amendment, and is therefore unconstitutional. State courts also have the power to strike down their own land's laws based on the state or federal constitutions.

Today, we accept judicial review for granted. In fact, it is ane of the principal characteristics of government in the United States. On an almost daily basis, court decisions come downward from effectually the country striking down state and federal rules every bit being unconstitutional. Some of the topics of these laws in contempo times include same sex spousal relationship bans, voter identification laws, gun restrictions, government surveillance programs and restrictions on abortion.

Other countries accept as well gotten in on the concept of judicial review. A Romanian court recently ruled that a law granting immunity to lawmakers and banning sure types of oral communication against public officials was unconstitutional. Greek courts accept ruled that certain wage cuts for public employees are unconstitutional. The legal system of the European Matrimony specifically gives the Court of Justice of the European Union the power of judicial review. The power of judicial review is besides afforded to the courts of Canada, Japan, India and other countries. Conspicuously, the world trend is in favor of giving courts the power to review the acts of the other branches of government.

However, it was not always so. In fact, the idea that the courts take the power to strike downward laws duly passed past the legislature is not much older than is the United States. In the civil police arrangement, judges are seen every bit those who apply the constabulary, with no ability to create (or destroy) legal principles. In the (British) common law system, on which American constabulary is based, judges are seen as sources of law, capable of creating new legal principles, and also capable of rejecting legal principles that are no longer valid. However, as Great britain has no Constitution, the principle that a court could strike down a police force every bit beingness unconstitutional was not relevant in United kingdom. Moreover, fifty-fifty to this 24-hour interval, United kingdom has an attachment to the thought of legislative supremacy. Therefore, judges in the Great britain 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 past Baron de Montesquieu in the 17th century, just judicial review did non arise from it in strength until a century later.

The principle of judicial review appeared in Federalist Paper #78, authored by Alexander Hamilton. Hamilton first tending of the thought that legislatures should exist left to enforce the Constitution upon themselves:

If it be said that the legislative body are themselves the constitutional judges of their ain powers, and that the construction they put upon them is conclusive upon the other departments, it may exist answered, that this cannot be the natural presumption, where it is non to be collected from any particular provisions in the Constitution. It is not 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 exist regarded by the judges, equally a cardinal constabulary. It therefore belongs to them to define its meaning, as well as the pregnant of whatsoever particular human action proceeding from the legislative body. If there should happen to exist an irreconcilable variance between the two, that which has the superior obligation and validity ought, of grade, to exist 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, declared in the Constitution, the judges ought to be governed by the latter rather than the quondam.

He then came out and explicitly argued for the ability of judicial review:

Whenever a particular statute contravenes the Constitution, information technology will be the duty of the judicial tribunals to adhere to the latter and condone the onetime.

The Marbury Determination

In spite of Hamilton's support of the concept, the power of judicial review was not written into the United States Constitution. Article Iii of the Constitution, in granting ability to the judiciary, extends judicial power to diverse types of cases (such every bit those arising under federal law), but makes no comment equally to whether a legislative or executive action could exist struck downwards. Instead, the American precedent for judicial review comes from the Supreme Court itself, in the landmark determination of Marbury v. Madison, 5 U.Due south. 137 (1803).

The story of Marbury is itself a fascinating study of political maneuvering. When Thomas Jefferson was elected every bit third President in a victory over John Adams, he was the get-go President who was not a fellow member of the Federalist 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 abroad by attrition.

During his last hours in office, Adams appointed several federal judges, including William Marbury. The committee had not yet 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 order to compel Madison to evangelize the commissions duly created by Adams while he was President.

While it was fairly credible to all that the commission was perfectly valid and should have been delivered, Supreme Court Chief Justice John Marshall worried that a straight conflict between the Court and newly elected President Jefferson could have destabilizing consequences for the yet young and experimental authorities. Nevertheless, Marshall could not very well rule that the commissions ought non to be delivered when it was credible to nearly that they were proper.

Instead, Marshall and the Court decided the example on procedural grounds. The entire reason the instance was in the Supreme Court in the beginning place was that the Judiciary Deed of 1789 (Section 13) immune the Courtroom the power to consequence writs of mandamus, such as the i being sought.

All the same, Commodity Three, Section two, Clause 2 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 Courtroom shall have original Jurisdiction. In all the other Cases earlier mentioned, the Supreme Courtroom shall have appellate Jurisdiction, both as to Constabulary and Fact, with such Exceptions, and under such Regulations equally the Congress shall make.

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 state is a party. Otherwise, you lot can appeal your case to the Supreme Court, but you cannot bring it there in the first instance. As Marbury was not an ambassador, foreign minister or consul and a state was non a political party to the example, the Constitution did not allow the Supreme Court to claim original jurisdiction over the example. Therefore, Marshall and the Courtroom ruled, whether Jefferson and Madison acted properly in denying Marbury's commission cannot be decided by the Courtroom. The case had to be dismissed since the Court had no jurisdiction over the case. The Judiciary Human activity that allowed the Courtroom to event a writ in this case was unconstitutional and therefore void.

While the result favored Jefferson (Marbury never did go a federal approximate), the case is remembered for the last betoken. It was the commencement fourth dimension that a court of the United states had struck down a statute as existence unconstitutional.

Expansion Subsequently Marbury

Since Marbury, the Supreme Court has greatly expanded the power of judicial review. In Martin v. Hunter'southward Lessee, 14 U.S. 304 (1816), the Courtroom ruled that information technology may review state court civil cases, if they ascend under federal or constitutional law. A few years after, it determined the same for state court criminal cases. Cohens v. Virginia, xix U.S. 264 (1821). In 1958, the Supreme Courtroom 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. i (1958). Today, there is no serious opposition to the principle that all courts, not only the Supreme Court (and indeed, not just federal courts) are empowered to strike down legislation or executive deportment that are inconsistent with the federal or applicable state Constitution.

Judicial Review: Impact

It is difficult to enlarge the issue that Marbury and its progeny have had on the American legal organization. A comprehensive list of important cases that take struck downward federal or state statutes would easily reach iv digits. But a recap of some of the almost important historical Courtroom decisions should serve to demonstrate the impact of judicial review.

In Brown 5. Board of Teaching, 347 U.S. 483 (1954), the Supreme Court struck downwardly country laws establishing separate public schools for black and white students on the grounds that they violated the "equal protection" clause of the Fourteenth Amendment.

In Gideon v. Wainwright, 372 U.South. 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 not afford their ain counsel.

In Loving five. Virginia, 388 U.Southward. 1 (1967), the Supreme Court struck down a Virginia statute that prohibited interracial matrimony, also on equal protection grounds.

In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme Court ruled that state criminal laws that punished people for incitement could not be 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 Courtroom temporarily halted the death penalisation in the United States by ruling that land decease penalisation statutes were non applied consistently or fairly enough to pass muster under the 8th Amendment.

In Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court struck downwards state laws that made abortion illegal. Though Roe and many after cases have walked a tight line in determining exactly how far the right to choose an abortion extends, the bones idea that the right to choose an abortion is protected as part of the right to privacy notwithstanding stands as the law of the state.

In Buckley five. Valeo, 424 U.S. 1 (1976), the Supreme Courtroom struck downwardly spending limits on individuals or groups who wished to use their ain money to promote a political candidate or message (though information technology upheld limitations on how much could be contributed directly to a campaign) on Offset Amendment grounds.

In Regents of the University of California five. Bakke, 438 U.South. 265 (1978), the Supreme Courtroom struck down certain types of race-based preferences in state college admissions equally violating the equal protection clause.

In Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court struck down sodomy laws in fourteen states, making same-sexual practice sex activity legal in every U.S. state.

In Citizens United v. Federal Election Committee, 558 U.Due south. 310 (2010), the Supreme Court struck down a federal election law that restricted spending on election advertising past corporations and other associations.

National Federation of Contained Business 5. Sebelius (2012) (the "Obamacare" determination) was famous for upholding most of the Patient Protection and Affordable Intendance Act. Still, it also struck down an 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 case (and countless others), the Court used its power of judicial review to declare that an human action past a federal or state government was null and void because information technology contradicted a constitutional provision. It is this ability that truly makes the courts a co-equal branch of government with the executive and legislative branches and allows it to defend the rights of the people against potential intrusions past those other branches.

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National Juris University, the graduate division of National Paralegal College, offers the following programs:

Chief of Science in Legal Studies
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Main of Science in Taxation

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