The Principle of Judicial Review
Imagine these headlines on the front of your daily newspaper:
The President Proclaims Only Christians Can Hold Jobs in the Federal Government
Iowa Legislature Passes Law Exempting Citizens of the State from Paying Federal Income Taxes
The actions described in these imaginary headlines violate the U.S. Constitution. If challenged in a federal or state court, such actions could be declared unconstitutional through the process of judicial review. Judicial review is the power of the courts to declare acts of the legislative and executive branches of government null and void if they violate provisions of the Constitution. All courts, federal and state, may exercise judicial review. Judicial review puts the judges of these courts in the position of being the guardians or official interpreters of the meaning of the Constitution. The justices of the U.S. Supreme Court, however, have the final say about the constitutionality of actions and laws.
Judicial review is based on these ideas:
· The Constitution is the supreme law
· Acts contrary to the Constitution are null and void
· The courts are responsible for determining if acts violate the Constitution
Origins of Judicial Review
Before the revolution in 1776, the English Privy Council in London regularly reviewed acts of the colonies. This was done to make sure the colonies’ laws complied with English law. After the Declaration of Independence each of the colonies formed state governments with their own state constitutions. Between 1778 and 1787, it became the practice of the courts in several states to overturn laws that they found violated their constitutions. Therefore, judicial review was well known in the colonies before the Constitution was written.
When the founders wrote the Constitution, there was little doubt that they intended the federal courts to have authority to declare state laws unconstitutional. It was less clear, however, that they intended the Supreme Court to have the same power over acts of Congress or the President.
A Constitutional Debate Starts. During the debate over ratification of the Constitution, Alexander Hamilton argued that the Supreme Court’s power of judicial review was clearly implied by the Constitution if not stated explicitly.
A young lawyer from Virginia, helping to convince his state to ratify the Constitution, summarized the need for judicial review. That lawyer, John Marshall, asked:
“To what quarter will you look for protection from an infringement on the Constitution if you will not give the power to the Supreme Court? There is no other body that can afford such protection.”
Other political leaders of the time were not so enthusiastic. As the new government started, Thomas Jefferson emerged as a leader of those who opposed the Court’s use of judicial review over the executive and legislative branches of the national government.
Jefferson wanted each of the three branches of government to decide for itself about the meaning of the Constitution. Thus, Congress would decide for itself whether or not its actions were constitutional. The President would do the same.
When Jefferson was elected President in 1800, it was still not settled whether the Supreme Court would exercise judicial review over acts of Congress or the President. The Court first asserted the power of judicial review of congressional actions in a case that grew out of the bitterly contested election which brought Jefferson to office.
Marbury v. Madison (1803). Forty-two men awaited commissions from President Adams’ administration appointing them justices of the peace for the District of Columbia. The President, a Federalist, rushed the appointments of these loyal federalists through the Senate just before his term of office ended. He hoped to leave his successor, the Republican Jefferson, with a court system packed with opponents.
Adams’ plan hit a snag when his Secretary of State failed to deliver all the commissions before Jefferson was inaugurated. Discovering Adams’ plan, President Jefferson instructed his new Secretary of State, James Madison, not to deliver the remaining commissions, one of which was William Marbury’s. In an effort to force Madison to release his commission, William Marbury looked through the Judiciary Act of 1789. He found that the Supreme Court had been given the power to issue writs of mandamus, orders that would force public officials to perform their official duties. Armed with this law, Marbury went to the Supreme Court and asked that a writ be issued to Madison commanding him to deliver the commission. Madison refused to obey the writ of mandamus, thus the case came before the Supreme Court.
The Court ruled that Marbury had a right to the commission he demanded. However, the Court also ruled that it had no right under the Constitution to issue a writ of mandamus in the first place! Therefore, the Supreme Court declared one part of the Judiciary Act of 1789 to be unconstitutional. Thus, William Marbury was left without the commission appointing him to be a justice of the peace. Of far greater importance, the Supreme Court had asserted the power of judicial review, which became a main principle of constitutional law in the United States.
Three Applications of Judicial Review. Today, the Supreme Court exercises its power of judicial review over:
1. laws passed by Congress
2. presidential actions
3. state legislation and court rulings