Judicial review under US Constitution LLB Notes

 

Judicial review under US Constitution

Introduction: -

            The supreme court of the USA has the power to review and declare any act of the President or any law passed by the congress as null and void if it contradicts with the provision of the constitution. In the words of Max Lerner "Judicial Review is presumably Americas most beautiful and original gift to the art of Government". The constitution has not expressly given this power to it but the supreme court has acquired it through its own interpretation of the constitution.

Meaning of Judicial Review According to Black's Law Dictionary;-

    "Judicial review is a court's power to review of actions of other branches or levels of government, especially the court's power to invalidate legislative and executive actions as being unconstitutional".

Judicial Review in US Constitution;-

 The constitution of US has not expressly granted the power of judicial review to the courts but it seems to grant it indirectly in its provisions.

a. Article III Section 2.;-

 The judicial power shall extend to all cases in law and equity, arising under this constitution.

b.  Article VI;-

      This constitution and the law of the united states which shall be made in pursuance thereof and all treaties made or which shall be made under the authority of the united states shall be the supreme law of the land and the judges in every states shall be bound thereby, anything in the constitution or laws of any states to the contrary notwithstanding".

Origin of Judicial Review;-

     The power of judicial review was exercised by the court for the first time in 1803 in the following case:-

MARBURY VS MADISON (1803)

a.    Facts of Case.                       

  (1)        Marbury was appointed as a justice of peace in the district of Colombia by  president Adams on the last day of his office, but the commission could not  be delivered to him.

 (2)        The next president Jefferson and his Secretary of state, Madison refused to delivery the commission to Marbury.

(3)        Marbury petitioned to the supreme court for a write of mandamus under the judiciary Act of 1798.

b.         Decision of the Case;-

           The supreme court presided by John Marshall held that Marbury was entitled to commission but it had no authority to grant a writ of mandamus because the provision of the judiciary Act of 1789 which empowered the supreme court to issue write of mandamus was in violation of the constitutional provisions of Article III and to this extent this act of congress was null and void.

c.  Brief Arguments of Chief Marshall.

            (1)        The constitution is the supreme law of the land and that the judges are    bound             to give effect to it. 

(2)        Any law passed by the congress which was opposed to any provision of the constitution was null and void and was not binding on the court.

(3)        It was the duty of the court to declare any law illegal and void if it violated nay provision of the constitution.

Scope of Judicial Review;- 

a.         Judicial review applies to federal and states laws.

b.         It also applies to constitution of the state.

c.         It also applies to treaties made by the federal Government.

d.         It also applies to orders issued by the federal and the state executive authorities.

Reasons for Exercise of Judicial Review;-

     Following are the reason for the exercise of powers of judicial review:-

a.         To keep the congress and the President within the limits of their powers.

b.         To enlarge and strengthen the authority of Federal Government.

c.         To defend the rights of property.

d.         To defend Civil Liberties and rights.

Exercise of Judicial Review in Judicial Field;-

          Following things are essential for the exercise of judicial review: -

a.         There must be two parties to a dispute come before the court.

b.         The decision turns on the provisions of a particular statue.

c.         The provisions of a statute must be invalid such as against the constitution.

Importance of Judicial Review;-

         The importance of powers of judicial review lies in the fact that due to this power the supreme court has become the guardian of the constitution and has played a vital role in its development. It protects the constitution and its supremacy against the laws of the centre or the states which conflict with or contravene its provisions.

Criticism on Doctrine;-

           The excessive use of powers of judicial review has raised the criticism on following points:-

a.         Supreme Courts Role as Supreme Legislature;-

       The critics contend that the supreme court has expended its authority to such an extent as it has become a non-elective Super Legislature.

b.         One man Tyranny;-

     Judicial review may be the result of one man tyranny. Five judges may hold a law unconstitutional and four may hold it valid. Thus the decision rests with one man who holds office for life and is not responsible to the voters.

c.         Social Progress;-

         The decision of the supreme court on constitutional questions often clogs (Blocks) the wheel of progress.

d.         Stress only on Legal Aspects;-

           The judges stress more on legal aspects and tend to overlook other aspects such as social economic etc. while declaring law null and void.

Conclusion;-

    The power of judicial review has not only made the supreme court a guardian of the constitution but also a final arbiter (Judge, Authority) of all laws, acts and policies of the other two organs.