Five years before Marbury v. Madison, a number of state lawmakers have said they understand that federal courts have the constitutional power to review them. Since the adoption of the Constitution, some have argued that the power of judicial review gives the courts the ability to make their own views on the law without the need for appropriate review by another branch of government. Robert Yates, a delegate from New York to the Constitutional Convention, argued during the ratification process in the Anti-Federalist Papers that courts would loosely use the power of judicial review to impose their views on the “spirit” of the Constitution: Other countries have also adopted the concept of judicial review. A Romanian court recently ruled that a law granting immunity to lawmakers and banning certain types of speech against public officials was unconstitutional. Greek courts have ruled that some pay cuts for public sector employees are unconstitutional. The EU legal order expressly confers on the Court of Justice of the European Union a power of judicial review. Judicial review is also granted to courts in Canada, Japan, India and other countries. The global trend is clearly to give the courts the power to review the actions of other branches of government. It is difficult to overestimate the impact that Marbury and his descendants had on the American legal system. A full list of important cases that have overturned federal or state laws would easily reach four digits. However, a summary of some of the most important landmark court decisions should serve to show the impact of judicial review. The Supreme Court plays a very important role in our constitutional system of government.
First, as the highest court in the land, it is the court of last resort for those seeking justice. Second, through its power of judicial review, it plays a critical role in ensuring that each branch of government recognizes the limits of its own power. Third, it protects civil rights and freedoms by removing laws that violate the Constitution. Finally, it sets appropriate limits for democratic governments by ensuring that popular majorities cannot pass laws that harm and/or unduly exploit unpopular minorities. Essentially, it serves to ensure that the changing views of a majority do not undermine the core values common to all Americans, namely freedom of speech, freedom of religion, and due process. The jurisdiction of the United States shall be transferred to such Supreme Court and such subsidiary courts as Congress may order and establish from time to time. Jurisdiction extends to all matters arising out of this Constitution, the laws of the United States, and treaties entered into or to be concluded under its authority. In all cases involving ambassadors, other public ministers and consuls in which a State is to be a party, the Supreme Court has jurisdiction in the first instance. In all the other cases mentioned above, the Supreme Court has jurisdiction to hear appeals in law and in fact, except and in accordance with the rules adopted by Congress. The text of the Constitution does not contain any specific provision on the power of judicial review. On the contrary, the power to declare laws unconstitutional was considered an implied power under Articles III and VI of the United States Constitution.
The government`s judicial review took place in the landmark decision in Marbury v. Madison, the first Supreme Court decision to dismiss the congressional bill as unconstitutional, with Chief Justice John Marshall`s famous phrase: “It is the duty of the Department of Justice to say what the law is. Those who apply the rule to certain cases must necessarily explain and interpret it. If two laws conflict with each other, the court must decide on the application of each of them. Marshall then discussed the role of the courts, which is at the heart of the doctrine of judicial review. It would be “absurd,” Marshall said, to require the courts to enforce a void law. Rather, it is the inherent duty of the courts to interpret and apply the Constitution and to determine whether there is a conflict between a law and the Constitution: but not only with respect to violations of the Constitution, the independence of judges may be an essential safeguard against the effects of occasional bad humour in society. These sometimes go no further than the violation of the private rights of some citizens by unjust and biased laws.
Again, the firmness of the judiciary is of great importance in mitigating the severity and limitation of the application of these laws. Not only does it serve to mitigate the immediate calamity of those that may have been adopted, but it also serves as a check for the legislature by adopting it; who recognize that the obstacles to the success of an unjust intention are to be expected from the courts, and are somehow constrained by the grounds of injustice that they meditate to relativize their attempts. It is a circumstance that is destined to have more influence on the character of our governments than few people realize. Article III of the Constitution establishes the federal judiciary. Article III, section I, states: “The judicial authority of the United States shall be vested in a Supreme Court and such subsidiary courts as Congress may from time to time prohibit and establish.” Although the Constitution establishes the Supreme Court, it allows Congress to decide how it should be organized. Congress first exercised this power in the Judicial Act of 1789. This law created a Supreme Court with six judges. He also established the lower federal judicial system. Second, the idea of separation of powers is another theory about how the government of a democratic society should be organized. In contrast to legislative supremacy, the idea of separation of powers was first introduced by Montesquieu; [1] It was subsequently established in the United States by the Supreme Court decision in Marbury v. Madison under the court of John Marshall. The separation of powers is based on the idea that no one branch of government should be able to exercise power over another without due process; Each branch of government should control the powers of the other branches of government, thereby creating a regulatory balance between all branches of government.
The key to this idea lies in checks and balances. In the United States, judicial review is considered an important judicial review of the powers of the other two branches of government. The sincere citizen must admit that if the policy of the government on vital matters affecting the whole people is to be irrevocably determined by decisions of the Supreme Court, the people will have ceased to be their own leaders as soon as they are made in an ordinary dispute between the parties in personal acts, since they have practically placed their government in the hands of this important court. From this point of view, there is also no attack on the court or the judges. It is a duty that they must not shirk in order to decide cases that are properly presented to them, and it is not their fault when others try to steer their decisions for political purposes. [70] Judicial review is the fundamental idea of the U.S. system of government that the actions of the executive and legislative branches are subject to judicial review and eventual disability. Judicial review allows the Supreme Court to play an active role in ensuring that other branches of government respect the Constitution. During the debates of the Constitutional Convention, the founding fathers repeatedly referred to the concept of judicial review. Most of these references occurred during the discussion of the proposal known as the Virginia Plan. Virginia`s plan included a “review board” that would have reviewed and accepted or rejected proposed new federal laws, similar to the president`s veto today.
The president would have been a member of the “Review Board” with some federal judges. Several delegates spoke out against the inclusion of federal judges on the Audit Council. They argued that the federal judiciary, because of its power to declare laws unconstitutional, already had the ability to protect itself from legislative interference and did not need a second way to deny laws by participating in the Audit Council. For example, Elbridge Gerry stated that federal judges “had sufficient control over encroachments in their own departments through their interpretation of laws that included decision-making authority over their constitutionality. In some states, judges had even struck down laws because they violated the Constitution.
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