Judicial review is the doctrine in democratic theory under which legislative and executive actions are subject to review, and possible invalidation, by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority, such as the terms of a written constitution. Judicial review is an example of the functioning of separation of powers in a modern governmental system (where the judiciary is one of three branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from country to country and state to state. The power of courts of law to review the actions of the executive and legislative branches is called judicial review. Though judicial review is usually associated with the U.S. Supreme Court, which has ultimate judicial authority, it is a power possessed by most federal and state courts of law in the United States. The concept is an American invention. Prior to the early 1800s, no country in the world gave its judicial branch such authority. Part II: Judicial review in the United States
Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the constitution itself. At the federal level, there is no power of judicial review explicitly established in the United States Constitution, but the doctrine has been inferred from the structure of that document. At the time of the 1787 Constitutional Convention, five of the thirteen States included some form of judicial review or judicial veto in their state constitutions. Delegates at the Convention, including South Carolina’s Charles Pinckney, spoke out against the doctrine of judicial review. The Constitution states in Article III:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish....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....In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. In the United States, the supremacy of national law is established by Article VI, Clause 2, of the U.S. Constitution. Called the Supremacy Clause, it states that “This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land.” It goes on to say that, “judges in every state shall be bound thereby.” This means that state laws may not violate the U.S. constitution and that all state courts must uphold the national law. State courts uphold the national law through judicial review. Famous case
The famous case of Marbury v. Madison(1803) marked the first time the U.S. Supreme Court explicitly explained and justified judicial review. Writing for a unanimous Court, John Marshall, fourth Chief Justice of the U.S., used syllogistic reasoning. Major premise: The Constitution is the supreme law of the land and judges take an oath to support it. Minor premise: It falls within the province of the judiciary to interpret the law. Conclusion: Judges must not unassailable. In fact, only two...