Judicial review

“Judicial review is the power of the courts to review laws, treaties, policies or executive orders relevant to cases before the court and nullify (overturn) those that are found unconstitutional”

The Supreme Court of the United States spends much, if not most, of its time on a task which is not delegated to the Supreme Court by the Constitution.

That task is:-

“Hearing cases wherein the constitutionality of a law or regulation is challenged”

The Supreme Court's nine Justices attempt to sort out what is, and what is not constitutional. This process is known as Judicial Review. But the states, in drafting the Constitution, did not delegate such a power to the Supreme Court, or to any branch of the government.

Since the constitution does not give this power to the court, you might wonder how it came to be that the court assumed this responsibility.

The answer is that, recorded use under the US Constitution was in 1792, when the circuit courts found an act of Congress related to military veterans unconstitutional.

The US Supreme Court first exercised judicial review 1796, in the case of Hylton v. United States, although the rationale for using it had been laid in Federalist No. 78. Hylton v. United States was the first instance in which the Supreme Court evaluated the constitutionality of a federal law. In Hylton, the legislation, a carriage tax, was upheld. In a later case that year, Ware v. Hylton, the Ellsworth Court determined The Treaty of Paris took precedence over an otherwise constitutional state law and nullified the law.

(Hylton v. United States, 3 U.S. 171 (1796), was an early United States Supreme Court case in which the Court held that a tax on carriages did not violate the Article I, Section 9 requirement for the apportioning of direct taxes. It found the carriage tax was an "excise" instead of a "direct tax" requiring apportionment among the states by population. The Court noted that a tax on land was an example of a direct tax contemplated by the Constitution)

(Ware v. Hylton, 3 U.S. 199 (1796) is a United States Supreme Court case where a divided court ruled that an article in the Treaty of Paris, which provided that debtors on both sides should meet no lawful impediment when recovering bona fide debts, took precedence and overruled a Virginia law passed during the American Revolution which had nullified such debts. The full title of the case is Ware, is also known as the British Debt case)

Judicial review in the United States also refers to the power of the Court to review the actions of public sector bodies in terms of their lawfulness, or to review the constitutionality of a statute or treaty, or to review an administrative regulation or executive order for consistency with statute, a treaty, or the Constitution itself.

Judicial review is one of the distinctive features of United States constitutional law. It is no small wonder, then, to find that the power of the federal courts to test federal and state legislative enactments and other actions by the standards of what the Constitution grants and withholds is nowhere expressly conveyed. But it is hardly noteworthy that its legitimacy has been challenged from the first, and, while now accepted generally, it still has detractors and its supporters disagree about its doctrinal basis and its application.

Although it was first asserted in Marbury v. Madison (1803) in which Chief Justice John Marshall declared Section 13 of the Judiciary Act of 1789 unconstitutional. This was the first time the Supreme Court overturned federal legislation.

Facts

On his last day in office, President John Adams named forty-two justices of the peace and sixteen new circuit court justices for the District of Columbia under the Organic Act. The Organic Act was an attempt by the Federalists to take control of the federal judiciary before Thomas Jefferson took office.

The commissions were signed by President Adams and sealed by acting Secretary of State John Marshall (who later became Chief Justice of the Supreme Court and author of this opinion), but they were not delivered before the expiration of Adams’s term as president. Thomas Jefferson refused to honor the commissions, claiming that they were invalid because they had not been delivered by the end of Adams’s term.

William Marbury was an intended recipient of an appointment as justice of the peace. Marbury applied directly to the Supreme Court of the United States for a writ of mandamus to compel Jefferson’s Secretary of State, James Madison (D), to deliver the commissions. The Judiciary Act of 1789 had granted the Supreme Court original jurisdiction to issue writs of mandamus “…to any courts appointed, or persons holding office, under the authority of the United States.”

Issues

1.      Does Marbury have a right to the commission?

2.      Does the law grant Marbury a remedy?

3.      Does the Supreme Court have the authority to review acts of Congress and determine whether they are unconstitutional and therefore void?

4.      Can Congress expand the scope of the Supreme Court’s original jurisdiction beyond what is specified in Article III of the Constitution?

5.      Does the Supreme Court have original jurisdiction to issue writs of mandamus?

Holding and Rule (Marshall)

1: Yes. Marbury has a right to the commission.

The order granting the commission takes effect when the Executive’s constitutional power of appointment has been exercised, and the power has been exercised when the last act required from the person possessing the power has been performed. The grant of the commission to Marbury became effective when signed by President Adams.

2: Yes. The law grants Marbury a remedy. The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection.

Where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, the individual who considers himself injured has a right to resort to the law for a remedy. The President, by signing the commission, appointed Marbury a justice of the peace in the District of Columbia. The seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment. Having this legal right to the office, he has a consequent right to the commission, a refusal to deliver which is a plain violation of that right for which the laws of the country afford him a remedy.

3: Yes. The Supreme Court has the authority to review acts of Congress and determine whether they are unconstitutional and therefore void.

It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

4: No. Congress cannot expand the scope of the Supreme Court’s original jurisdiction beyond what is specified in Article III of the Constitution.

The Constitution states that “the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.” If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, this section is mere surplus age and is entirely without meaning. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance.

5: No. The Supreme Court does not have original jurisdiction to issue writs of mandamus.

To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.

It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original action for that paper, and is therefore a matter of original jurisdiction.

Disposition

Application for writ of mandamus denied. Marbury doesn’t get the commission.

Summary of case:

First decision by the Supreme Court to declare a law unconstitutional (1803).

Here is a summary:

·         At the very end of his term, President John Adams had made many federal appointments, including William Marbury as justice of the peace in the District of Columbia.

·         Thomas Jefferson, the new president, refused to recognize the appointment of Marbury.

·         The normal practice of making such appointments was to deliver a "commission," or notice, of appointment. This was normally done by the Secretary of State. Jefferson's Secretary of State at the time was James Madison.

·         At the direction of Jefferson, Madison refused to deliver Marbury's commission. Marbury sued Madison, and the Supreme Court took the case.

·         Chief Justice John Marshall wrote that the Judiciary Act of 1789, which spelled out the practice of delivering such commissions for judges and justices of the peace, was unconstitutional because it gave the Supreme Court authority that was denied it by Article III of the Constitution. Thus, the Supreme Court said, the Judiciary Act of 1789 was illegal and not to be followed.

This was the first time the Supreme Court struck down a law because it was unconstitutional. It was the beginning of the practice of "judicial review."

Judicial Review Effect on the United States Court System

The American court system has become a judicial model for many other countries particularly because of its unique function of judicial review. This feature of the American system can be very powerful in shaping laws and power in the United States and it is one of the three parts of the American system of checks and balances in government.

Judicial Review Defined

    Part of American democracy is the concept that no one section of government should be too powerful and uncontrolled. Accordingly, judicial review is the courts' power to oversee and restrain the excesses of the legislative and executive branches of government. The courts exercise this power by interpreting what laws mean and how they may be applied. In doing so, the courts can strike down a law determined to be inconsistent with the U.S. Constitution, and they can change the application of a law by determining what the law really means. Judicial review does not include the power to make or enforce laws. Those powers are reserved to the legislative and executive branches, respectively.

Background

    The power of judicial review was not explicitly provided in the U.S. Constitution. The courts instead inferred the judicial-review authority from the way the judicial branch is established in the Constitution.

Article III of the Constitution broadly assigns all judicial power to the Supreme Court and its lower courts. There is no explicit mention of the authority to review the acts of other government branches. The Supreme Court stepped into this gap in 1803 by making clear in Marbury v. Madison that the power of judicial review did exist and was to be exercised exclusively by the courts.

Application

    The courts practice judicial review regularly as laws and their applications are challenged in court. The U.S. courts examine legal issues brought to them, and the applicable statutes, in the light of the Constitution's prescriptions for how government is to behave. The courts then use the authority of judicial review to interpret constitutional parameters and apply them in case decisions.

While the Marbury decision in 1803 reserved judicial review for the courts, it did not give the courts any new power to choose what legal issues were to be reviewed in court. Congress and the state legislatures retained the power to define the issues by creating laws that could be challenged and reviewed.

Limits on Court Power

    Judicial review does not give the U.S. courts the ability to create a legal issue. The court system is restricted to hearing issues brought to it through lawsuits by non-court parties. Further, courts can review only issues that are based on the actual facts of a specific case. They cannot decide hypothetical cases or issues and must dismiss them as being premature or moot.

Conflicting Laws

    The U.S. courts can invalidate a federal law if the court determines that the Constitution makes that federal law invalid or illegal. When a state law conflicts with a federal law, the U.S. courts have jurisdiction and can void the state law as being inferior in legal authority. The same goes for local, municipal laws as well. An example would be if a state passed a law allowing marijuana use but the U.S. court invalidated it as being in conflict with federal drug laws.

The invalidating power, however, can be exercised only when there is a conflict of state or local law with federal law; the U.S. court cannot invalidate a local government law just because the court disagrees with it.

Importance of judicial review:

Mainly without judicial review the Constitution would be nothing but a piece of paper. The Constitution states that it is the supreme law of the land. There has to be an authority to decide whether a particular law is constitutional or unconstitutional. If not, then the legislative branch would be free to pass any law without regard to its constitutionality. Judicial authority has always included the power to interpret laws. The Constitution gives the judicial branch power over all cases arising under the Constitution. The courts must be able to interpret both the Constitution and laws and to determine whether one prohibits the other.

The bill may possibly be constitutional and needed for the country, but the people in the judicial branch don't think so, making for a flawed system.

Judicial Review allows the courts to declare acts of the legislature and the executive to be unconstitutional and thus null and void. It gives the Judicial Branch the power to interpret the laws and actions of the other two branches and is an important part of the "checks and balances" system established in the Constitution to prevent any one branch from becoming too powerful. Judicial Review may cause a president or Congress to delay some activity or law until they get an opinion from legal advisers as to the constitutionality of the action or law, but it establishes how and who will have the final say as to the constitutionality of that act or law.

It is a "check" the Judicial branch (lead by the US Supreme Court) can exercise over both the Legislative (Congress) and Executive (President) branches.

The argument against judicial review is that it is not explicitly stated in the Constitution. This is a power that was created by Marshall's Court. And, the executive and legislative branches also have a Constitutional responsibility to uphold the Constitution. The argument is that the executive and legislative have an equal responsibility with the judicial branch to interpret the Constitution.