This website uses cookies to ensure you have the best experience. Learn more

Judicial Review

1217 words - 5 pages

In Federalist 78, Alexander Hamilton argued that the Judicial Branch is the “least dangerous to the political rights of the Constitution" and that it is “beyond comparison the weakest of the three departments of power” since it has “neither force nor will, but merely judgment.” [*] While it is true that Hamilton wrote the Federalist Papers as propaganda to garner support for the Constitution by convincing New Yorkers that it would not take away their rights and liberties, it is also true that Article III of the Constitution was deliberately vague about the powers of the Judicial Branch to allow future generations to decide what exactly those powers should be. In the 1803 case of Marbury v. ...view middle of the document...

Hamilton stated that the Judicial Branch can merely judge, and even then would be unable to accomplish anything substantial without the aid of the Executive Branch. [*] According to him, the Judicial Branch “has no influence over either the sword or the purse,” which the other two branches of government have control of, and is thus “beyond comparison the weakest of the three departments of power; can never attack with success either of the other two." [**] However, Hamilton was incorrect in making this argument because the powers the Judicial Branch holds in evaluating the constitutionality of a law are just as important to many citizens as “the sword or the purse.” Judicial review is the power to "attack with success...the other two." In the actual text of the Constitution, Article III states: "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."[*] This statement is somewhat vague, as it does not mention anything regarding procedures for when there is no existing law or treaty concerning a topic, and thus leaves the Supreme Court potentially open to acquiring more power than the Framers of the Constitution (including Alexander Hamilton) may have intended.
In 1803, the landmark case Marbury v. Madison was decided under Chief Justice John Marshall’s Court, in which judicial review was practiced for the first time. In Marbury v. Madison, William Marbury and several other men were appointed to government positions at the end of John Adam’s presidency and confirmed by the Senate, but never received the commissions for the jobs. [*Oyez M v. M] As a result, Marbury sued Secretary of State James Madison, who was instructed by the newly inaugurated President Jefferson to withhold delivery of the commissions. [*Casebriefs M v. M] In the end, all four of the Justices who voted on the case agreed with the majority opinion in favor of Madison. [*Oyez] The majority opinion, written by Chief Justice John Marshall, declared that the power granted to the Judicial Branch to "to issue writs of mandamus” in the Judicial Act of 1789 was unconstitutional because Article III of the Constitution specifically lists the types of cases that the Judicial Branch should deal with. [*] Justice Marshall wrote, “A law repugnant to the Constitution is void, and…courts, as well as other departments, are bound by that instrument," as the Constitution "the fundamental and paramount law of the nation." [**] This statement established the Constitution as the supreme law—one that no other law or government department, including the Supreme Court, can contradict. It allows the...

Find Another Essay On Judicial Review

The Importance of Judicial Review

1215 words - 5 pages By creating a Constitution, it is assumed that the people are going to agree to it as the law of the land. The Supreme Court is responsible for upholding the Constitution by interpreting the laws for the benefit of the people. The justices would be violating their oath if they were to oblige this obligation. If the Constitution were not the law of the land, why would it exist? This is the justification for judicial review, or the right of the

Judicial Review in the UK

2083 words - 8 pages The role of the courts in judicial review is to ensure that Public authorities act lawfully; all such authorities are subject to the rule of law and are not permitted to act ‘ultra vires’ (beyond their powers). The power that authorities have comes from powers granted to that authority by statute or delegated legislation. The Human Rights Act 1988 (HRA) created an additional ground s6(1) making it unlawful for public bodies to act in a

The Power of Judicial Review

1323 words - 6 pages military, or “the sword”. The judicial branch also poses no threats to any political rights. Federalist 78 outright protects the idea of judicial review, one of the most controversial topics. Hamilton claims that the court not only has the right, but the duty to decide when acts of Congress are constitutional or unconstitutional and to base their decision firmly off the Constitution whenever there are any type of conflicts. He regarded this as a

Marbury v. Madison and Judicial Review

1022 words - 5 pages The court case of Marbury v. Madison (1803) is credited and widely believed to be the creator of the “unprecedented” concept of Judicial Review. John Marshall, the Supreme Court Justice at the time, is lionized as a pioneer of Constitutional justice, but, in the past, was never really recognized as so. What needs to be clarified is that nothing in history is truly unprecedented, and Marbury v. Madison’s modern glorification is merely a product

Judicial Review: 1803 Chief Justice John Marshall

2140 words - 9 pages The first U.S. Supreme Court case to apply the principle of "judicial review" - the power of federal courts to void acts of Congress in conflict with the Constitution is considered to be one of the most important cases in the Supreme Court history. This case was a landmark United States Supreme Court case because the Court formed the basis for the exercise of judicial review in the United States under Article III of the Constitution (LII

Court cases dealing with judicial review and the 2nd amendment

981 words - 4 pages . U.S. Is the President's right to safeguard certain information, using his "executive privilege" confidentiality power, entirely immune from judicial review? No. The Court ruled that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, can continue an absolute, unqualified, presidential privilege. The Court noted that there was a limited executive privilege in areas of military

Legitimacy of judicial review under Canadian charter of rights and freedom

837 words - 3 pages after 1982, the courts became pro-active in determining the relation between the state and its citizen through judicial review. Judicial review is the court’s evolution to determine the constitutionality of the executive and the legislative government’s political action as well as finding out whether a legislation, enacted by both branches of the government, infringes any members of the citizen. Although this may sound simple and

The useful and important role judicial review plays in the United Kingdom's constitution

1966 words - 8 pages Justify the following: "The decision of Maurice Kay J. in R (on the application of Medway and Kent Councils, Essex County and Norman and David Fosset) v Secretary of State for Transport QBD, Admin. Ct. 26 Nov. 2002, illustrates the useful and important role judicial review plays in the United Kingdom's constitution."The operational system of government is divided into "inferior bodies" otherwise known as administrative bodies. These are bodies

Separation of Power

833 words - 3 pages lives of over 311 million Americans. When it comes to which branch has the most power, this power alone, to produce an effect over the American society, is what sets the legislative branch above the judicial and executive branches. The judicial branch’s central duty is to interpret laws. Although their ability to interpret laws and to determine whether or not a given law, or legislative action, is constitutional through judicial review can

Important Court Case in American History: Marbury v. Madison

604 words - 3 pages Arguably the most important court case in American History, Marbury v. Madison was a revolutionary decision that set precedent unparalleled to any other court case. This case, which regarded the midnight appointment of Marbury, a justice, is more important for its effects than the actual ruling. It established the incredibly important judicial review; the Supreme Court’s power to declare acts of congress unconstitutional, and balanced the

The Separation of Powers Doctrine

1605 words - 6 pages ) the institutional role of judicial review to assure agency adherence to applicable legal standards (Krauss, 1991). Without question, the U.S. Constitution clearly articulates the idea of limited government by the checks and balances listed in the main body of the constitution. The Constitution presented in 1887 articulates little about individual rights but details the structure and distribution of responsibilities within governmental

Similar Essays

Judicial Review

1062 words - 4 pages Judicial review was enacted as a checks and balance step when concerning the government and the interpretation of the U.S. Constitution. Judicial review gives the court the power to review and change laws and government acts that violate the Constitution (Huq, n.d.). Allowing the court system this power helps prevent government officials from using the Constitution to illegally use their position in making laws and regulations in the United

Term Paper: Judicial Review

639 words - 3 pages Judicial review is the power of the Supreme Court to review, and if needed, determine if the actions of the legislative and executive branches are unconstitutional. This power is important for the judicial branch in keeping the balance among the three branches of government and keeping the executive and legislative branches in check. The power of judicial was not described directly in the Constitution but it has been implied and since this power

Judicial Review Proceedings

1928 words - 8 pages Judicial Review Proceedings Introduction ============ Judicial review proceedings exist to ensure that lower courts and administrative bodies do not act beyond or at variance with their inherent powers. If they do act in such a way, the reviewing court[1] will take action to rectify. Where discretionary powers given to administrative bodies are abused, the court will usually grant an order of certiorari

Marbury V. Madison: Judicial Review

1275 words - 5 pages In the case of Marbury v. Madison the power of judicial review was granted to the Supreme Court in 1801. The Constitution does not give power of judicial review. On Adams last day in office, several government officials upheld the case. Judicial review does not exist in countries that have a centralized or unitary form of government. The elected parliament declares it is the law of the land. Halsema Proposal to Netherlands has taken the