Judicial Review

Author:Jeffrey Lehman, Shirelle Phelps
 
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A court's authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles.

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,

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no country in the world gave its judicial branch such authority.

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.

Through judicial review, state courts determine whether or not state executive acts or state statutes are valid. They base such rulings on the principle that a state law that violates the U.S. constitution is invalid. They also decide the constitutionality of state laws under state constitutions. If, however, state constitutions contradict the U.S. Constitution, or any other national statute, the state constitution must yield. The highest state court to decide such issues is the state supreme court.

While judicial review of state laws is clearly outlined in the supremacy clause, the Framers of the U.S. Constitution did not resolve the question of whether the federal courts should have this power over congressional and executive acts. During the early years of the Republic, the Supreme Court upheld congressional acts, which implied the power of judicial review. But the key question was whether the Court had the power to strike down an act of Congress.

In 1803, the issue was settled in MARBURY V. MADISON, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60, when the Supreme Court, for the first time, ruled an act of Congress unconstitutional. In Marbury, Chief Justice JOHN MARSHALL reasoned that since it is the duty of a court in a lawsuit to declare the law, and since the Constitution is the supreme law of the land, where a rule of statutory law conflicts with a rule of the Constitution, then the law of the Constitution must prevail. Marshall asserted that it is "emphatically the province and duty of the judicial department, to say what the law is."

Having established the power of judicial review, the Supreme Court applied it only once prior to the Civil War, in 1857, ruling the MISSOURI COMPROMISE OF 1820 unconstitutional in DRED SCOTT V. SANDFORD, 60 U.S. (19 How.) 393, 15 L. Ed. 691. During the same period, the Court...

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