The power of the Judicial Review plays a very important part in preserving the Constitution
Developing it according to the changing circumstances
America has a federal Constitution, which has divided into powers between centers and the component State. It has declared that the constitution is supreme law which cannot be infringed upon by the law of the Central Congress and State Legislature. The Supreme Court is the guardian of the Constitution, protecting its supremacy against the laws of the Centre or the State which conflict with or contravene with its provisions. It has the power to review all such laws and declare the sphere of the powers of the Congress or the State Legislature.
It has claimed this power since 1803 in the famous case of Marbury vs. Madison, although the Constitution has nowhere explicitly granted it the power to pronounce the unconstitutionality of the acts of Congress or executive orders of the President. Marbury’s long-term effect has been to allow the Court to have the final say in what the Constitution means.
But it is justified based on the federal structure of the United States which can only exist if neither the Centre nor the States go beyond their allocated spheres of powers and on the separation of powers between the Executive a Legislature.
In this case, Chief Justice Marshal declared that the Supreme Court possessed the power to declare null and void any Legislative Act which in the opinion of the Court was repugnant to the Constitution. This leads the Judicial Review ascendant Supreme Court, as the Court does have power which increased under the third Chief Justice, John Marshall, who authored the opinion in Marbury v. Madison.
Chief Justice Marshall wrote that in
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.
Supreme court has declared about a hundred laws of the Congress and several laws of the State Legislature and ultra vires, and therefore unconstitutional and invalid. It may be marked that it cannot pronounce the constitutionality or otherwise of these laws on its initiative, but only when an aggrieved party brings a case before it. Therefore, Judicial Review is the control that the courts exercise for proclaiming proceedings of either the law-making or executive subdivisions, unacceptable or undemocratic.
However, the authority of judicial review has given the Supreme Court an essential role in the administrative organization of the country. It is a more important organ than Legislature itself. It has made it, as some of its critics say, the third chamber of Congress.
Its nine judges, the Nine Old Men, are criticized for defending the outdated ideas and principles of Founding Fathers, protecting the interest of the richer classes, declaring invalid several New Deal measures of President Roosevelt. However, the Supreme Court has protected and preserved the Constitution against all encroachments. It has been aptly called the balance wheel of the government machine of the United States.
It runs counter to democratic theory because the federal judges are hired for life and cannot run for office. However, these unelected, non-democratically accountable judges get to establish what is constitutional or not.
When democratic procedures deeply pressurize the rank of democratic citizens as free and equal, they are appropriately superseded by the process of judicial review for the sake of democracy. Moreover, decisions that overturn democratic procedures also challenge the core ethics of democracy as they overrule judgment made by a democratic population.
Therefore, even when democratic process outcomes in an undemocratic result, judicial review is not involuntarily acceptable; the defeat that would result from capsizing a democratic course of action must never be bigger than the achievement of democracy that would result from guaranteeing against an undemocratic outcome. Also, even when democracy necessitates overriding decisions that resulted from democratic procedures, Democrats are not to nevertheless concede that such action falls short of the self-governing mode.
Judicial review run counter to democratic theory as an unelected division checks an elected division in the name of the Constitution. As Alexander Hamilton anticipated the power of judicial review and discussed it in Federalist 78 and stated
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.
The Executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated.
Judiciary possessing such overwhelming power and is still considered the weakest of the three branches of the government because it doesn’t have the power to fund its orders. Moreover, it also cannot enforce its orders as only the President can do that.
Finally, in the spirit of checks and balances, the power of the judicial review is countered by the people, and by their elected representatives. To change the ruling of the court, Congress can pass an original law but if only the Supreme Court ruled on a matter of law or the Congress. The states can permit a new constitutional alteration turning over the court if the court ruled on the matter of the Constitution.
Four components of Judicial Review
There are four components of Judicial Review which include:
1. The Supreme Court can strike down (void) any federal act (presidential) or the law (congressional), which they consider to be unconstitutional based on their interpretation of the U.S. Constitution.
The Supreme Court doesn’t review federal legislation if pending law is challenged in the judicial system and attained the appellate level. The Line Item Veto Act of 1996 provided the President with authority to be able to cancel certain new expenditures and privilege projects, plus the authority for canceling a particular variety of inadequate, targeted tax breaks.
The president was permitted to withdraw it in five days of enacting bill granting this type of subsidizing. As Patrick and Richard stated, “These line-item vetoes were then questioned by 2/3 veto which can rule against by the House and Senate”. For instance, President Bill Clinton used the line-item veto for making eighty-three terminations, and Congress overruled thirty-nine terminations, in one military construction bill. As Patrick and Richard stated
In 1998, the Supreme Court of the United States ruled the line-item veto unconstitutional, in breaching of the Presentment Clause in Article I, Section 7, of the Constitution, requiring every bill should passing the House and Senate presenting to the president for his consent (approval or disapproval).
2. The Supreme Court can strike down (void) any state act (gubernatorial) or the law (state legislature), which they consider to be unconstitutional on the basis of their interpretation of the U.S. Constitution.
The Supreme Court has the power to interpret the Constitution, which it does base on the power of reviewing the laws of the Congress, and the State Legislatures to determine their constitutionality and the doctrine of implied powers. This is called the power of judicial review or judicial construction to find whether these laws do not contravene the Constitution and are ultra vires and therefore unconstitutional and null and void.
3. The Supreme Court can assert the supremacy of federal over state laws.
The federal government remains liberated for imposing federal marijuana regulations, even though jurisdictions have sanctioned medicinal marijuana acts. The federal government, nevertheless, is not allowed to compel state officers for assisting for enforcing.
Therefore, the federal government has the power for arresting medicinal marijuana patients or health care providers for federal marijuana felonies. Likewise, federal officials have the power of confiscating any marijuana they find. Up till now, the federal government has yet to arrest or accuse any patients of acquiring or using medicinal marijuana.
4. Supreme Court considers itself the final arbiter on the interpretation (the meaning) of the U.S. Constitution.
As the final arbitrator on the interpretation of the law, the Supreme Court is in charge to make certain the U.S citizen with equal justice under law and, thus, to also function as a protector of the Constitution.
On any sort of constitutional matter, the Supreme Court rules on it and decision is almost final; its verdict can only be changed very seldom if using the method of constitutional amendment or by a novel declaration of the Court. On the other hand, when the Court interprets a law/act/rule, and novel steps are taken.
The doctrine of the Judicial Review means that the Supreme Court has the power to determine whether a law passed by the Congress or any State Legislation conforms to the provisions of the Constitution or not. If it does not, the Supreme Court can declare ultra vires and therefore unconstitutional and null and void. Thus it has the power of reviewing the constitutionality of Act of the Congress or of the State Legislature.
Supreme Court interpreted the Constitution to defend the rights of the individual against a repressive Congress or Administration, as it did in the ‘civil right’ cases during the 1950s. Indeed Supreme Court sometime played the conservative role and at other times, a progressive role in the politics of the country.
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