Courts practice judicial review, sometimes declaring the governmental actions unconstitutional. Judicial review is based on principles of limited government, a written constitution, and a special role for courts. Judges have particular skills and independence to practice judicial review. Critics argue judges abuse the privilege. They suggest that the legislature and executive should have a bigger role. The proper balance remains a matter of debate. Meanwhile, judicial review has been one of our most successful exports.
What Is Judicial Review?
Courts interpret laws. A sign in the park says “no vehicles.” A police officer arrests someone in a motorized wheelchair. The person can use the courts to decide if that is what the law means.
A local law also might conflict with a federal law. The Constitution requires state officials, including judges, to agree to uphold federal law as the “supreme law of the land.”
“Judicial review” is also the power of the courts to consider and overturn any legislation or other official governmental action deemed inconsistent with a state or federal constitution. The Supreme Court can declare a federal law or a presidential act unconstitutional.
This form of judicial review was and remains more controversial. A look at its history will help explain how it developed. It will also raise multiple questions about its proper reach.
Before the Constitution
Great Britain in colonial times had parliamentary supremacy.
The national legislature, in theory, had unlimited power. Judges did not strike down its laws.
Nonetheless, there was some understanding that the parliament had a duty to respect certain limits, including the protection of fundamental rights. Colonialists expected judges, skilled in interpreting the law, to secure their rights from executive and legislative overreach.
Basic political philosophy provided that there were three branches of government (executive, legislative, and judiciary). The judiciary interpreted the law. The law included written constitutions that bound each branch of government. Judges needed some independence to perform this task. The king’s unjust removal of judges was an abuse of power.
These principles were applied when the colonialists declared independence and started to establish their own governments, including state constitutions and court systems.
The Constitution
The United States, unlike Great Britain, has a written constitution.
It fills in the details for the three branches of government. There are limits on governmental power, including a Bill of Rights. The federal courts have the power (jurisdiction) to settle certain disputes. Judicial pay cannot be reduced. Judges serve for “good behavior.”
The Constitution does not clearly provide a robust power of judicial review.
Judicial Review Recognized
“It is emphatically the province and duty of the Judicial Department to say what the law is.”
- Chief Justice John Marshall (Marbury v. Madison)
Many framers of the Constitution accepted judicial review. State courts began to apply it in the 1780s. A constitution is the “supreme law of the land.”
Judges interpret the law. Legislatures only had the power to pass constitutional laws, including those that did not abridge freedom of speech. An unconstitutional law was not truly a “law.”
Alexander Hamilton, in Federalist No. 78, argued it was safe to entrust judicial power in the hands of judges. Judges were legal experts. They also did not have the “power of the purse or sword.” Congress had the power to tax. The president enforced the law.
Judges only had the power of judgment. Federal judges began to declare, especially as parties in lawsuits representing both political parties asked them to determine whether policies were constitutional, that they had the power of judicial review. At least in extremely clear cases.
James Madison argued that “independent tribunals” would apply the Bill of Rights to protect people from legislative overreach. A few federal judges did not feel bound to hear pension claims, as required by a federal law, declaring the law unconstitutional.
The Supreme Court in Marbury v. Madison (1803) firmly declared it had the power to declare even a congressional law unconstitutional.
Judicial Review Critics
President Jefferson strongly criticized Marbury. Jefferson argued that each branch of government has an equal power to interpret the Constitution. The Supreme Court could determine individual cases. Meanwhile, the president and Congress also have the duty and power to determine if their acts are constitutional. They all swear an oath to uphold the Constitution.
Judicial independence was a two-edged sword. The people have the ultimate power. They could vote out presidents and members of Congress. What happens if a federal judge makes a mistake? They very well might. The Constitution contains many open-ended and vague phrases.
Madison and Jefferson, when Congress passed the Alien and Sedition Acts, argued that state legislatures had the responsibility to defend the Constitution. Others strongly disagreed. They declared the courts had that role. State officials had a duty to follow federal court decisions.
President Jackson applied executive power when he disagreed with the Supreme Court’s upholding the constitutionality of a national bank. Jackson vetoed bank legislation partially because he believed the bank was unconstitutional. It didn’t matter what the Court said.
Congress also has the means to challenge the courts. They regulate jurisdiction, determine the number of judges, have the power of impeachment, and confirm judges.
The Constitution can also be amended. It isn’t easy. Multiple amendments, starting in the 1790s (the Eleventh Amendment), were ratified to overturn Supreme Court decisions.
Judicial Review Today
Judicial review met the test of time. Countries worldwide have some version.
The people accepted a broad application of judicial review. Judges had a special role to settle disputes, protect rights, and stop abuses against minorities. It helped to secure limited government. People disagreed with certain decisions. They supported the power overall.
Critics remain. They think judges have too much power. Judges should apply judicial review more carefully. Perhaps, legislatures should have some power to overrule the courts.
The correct answers are unclear. The debate, started in 1787 or before, continues.