Judicial review in the United States

See also: Judicial review

Under Article I section 8 the Congress is given all the power

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

There is no judicial review or separation of powers explicit in the Constitution.

Separation of powers and judicial review have been inferred by the existence of a Supreme Court

Article III Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Courts in the United States do not have the responsibility of judicial review explicitly mentioned in the Constitution.

This assumed responsibility is based fundamentally on the tripartite nature of governmental power as enumerated in the United States Constitution wherein Article 1 section 8 Congress has all the power and delegates responsibility to the Judiciary and the Executive Branch as necessary and proper to enforce its decisions.

The Constitution states in Article III that:

The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish… The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…

Because it is Congress that ordains and establishes both the Supreme Court and inferior Courts, it can from time to time change the number of justices, their responsibilities and the rules whereby cases come into the jurisdiction of the various courts. The Judiciary can't review a case unless the Congress has ordained a rule that a court can use to process it.

Origins

The origins of judicial review in the United States can be traced back to the Constitutional Convention and the Virginia Plan's "council of revision", which included the Supreme Court, that would examine laws and could accept or reject them.

Administrative review

The procedure for judicial review of federal administrative regulation in the United States is set forth by the Administrative Procedure Act although the courts have ruled (such as in Bivens v. Six Unknown Named Agents) that a person may bring a case on the grounds of implied cause of action when no statutory procedure exists.

Constitutional review

The power to strike down laws is not specifically listed, but is an implied power derived from Article III quoted above, and from Article VI which declares that the Constitution is the supreme law of the land "and the Judges of every state shall be bound thereby". No state or federal law is allowed to violate the U.S. Constitution. The ultimate authority for deciding the constitutionality of federal or state law under the Constitution of the United States in cases which come before it is the Supreme Court of the United States, as decided in the 1803 case of Marbury v. Madison. However, the Constitution (at Article III, Section 2) also gives Congress power to make exceptions to the Supreme Court's appellate jurisdiction, and additionally states may have sovereign immunity from lawsuits.

The ultimate court for deciding the constitutionality of state law under state constitutions is normally the highest state appellate court, whose judgements are final in the absence of a federal question. This court is usually called a supreme court, but sometimes known as a court of appeals. Even before Marbury, the doctrine of judicial review was specifically enshrined in some state constitutions, and by 1803 it had been employed in both state courts and federal courts in actions dealing with state statutes.

In the federal system, courts may only decide actual cases or controversies; it is not possible to request the federal courts to review a law without at least one party having legal standing to engage in a lawsuit. This principle means that courts sometimes do not exercise their power of review, even when a law is seemingly unconstitutional, for want of jurisdiction. In some state courts, such as the Massachusetts Supreme Judicial Court, legislation may be referred in certain circumstances by the legislature or by the executive for an advisory ruling on its constitutionality prior to its enactment (or enforcement).

The Court seeks to avoid reviewing the Constitutionality of an act where the case before it could be decided on other grounds. Justice Brandeis framed it thus:

The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:

1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.
2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.
3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.
4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of… If a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.
6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.

Pros and cons

Although judicial review has now become an established part of constitutional law in the United States, there are some who disagree with the doctrine, or believe that it is unconstitutional. This is generally based on two grounds. First, the power of constitutional review is not specifically delegated to the Supreme Court anywhere in the Constitution. Second, the 10th Amendment states that any power that is not delegated by the constitution is reserved to the states, or people.

Although the Constitution does not explicitly authorize judicial review, it also does not explicitly prevent it, as did the Virginia Constitution of 1776. That Virginia Constitution said: "All power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised."

In a letter to William C. Jarvis in 1820, Thomas Jefferson wrote:

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps… and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all departments co-equal and co-sovereign within themselves.

The origins of judicial review in the United States can be traced back to the Constitutional Convention and the Virginia Plan's "council of revision", which included the Supreme Court, that would examine proposed new laws and could accept or reject them. However, under this system, the legislature could pass a bill over the council's veto. By August 27, 1787 this plan had been dropped. James Madison, the author of the Virginia plan, stated in his notes on the convention that:

He [Madison always referred to himself in the third person] doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution and whether it ought not to be limited to cases of a judiciary nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that department.

Robert Yates, a delegate to the Constitutional Convention from New York, afterwards predicted what would happen:

And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal.

Therefore, the Constitutional Convention, believing that the Supreme Court would abuse their power, changed the "council of revision" into the Presidential veto.

Proponents of judicial review note that any government based on a written constitution requires some mechanism to prevent laws from being passed that violate that constitution. Otherwise, the document would be meaningless, and the legislature, with the power to enact any laws whatsoever, would be the supreme arm of government. This concept was laid out by Alexander Hamilton in Federalist No. 78:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Standard of review

In the United States, unconstitutionality is the only ground for a federal court to strike down a federal statute. Justice Washington, speaking for the Marshall Court, put it this way in Satterlee v. Matthewson, 27 U.S. 380 (1829):

We intend to decide no more than that the statute objected to in this case is not repugnant to the Constitution of the United States, and that unless it be so, this Court has no authority, under the 25th section of the judiciary act, to re-examine and to reverse the judgement of the supreme court of Pennsylvania in the present case.

If a state statute conflicts with a valid federal statute, then courts may strike down the state statute as a violation of the Supremacy Clause. But a federal court may not strike down a statute absent a violation of Federal law or of the federal Constitution.

Moreover, a suspicion or possibility of unconstitutionality is not enough for American courts to strike down a statute. Alexander Hamilton explained in Federalist 78 that the standard of review should be "irreconcilable variance" with the Constitution. Antifederalists agreed that courts would be unable to strike down federal statutes absent a conflict with the Constitution. For example, Robert Yates, writing under the pseudonym "Brutus", asserted that "the courts of the general government [will] be under obligation to observe the laws made by the general legislature not repugnant to the constitution."

These principles—that federal statutes can only be struck down for unconstitutionality and that the unconstitutionality must be clear—were very common views at the time of the framing of the Constitution. For example, George Mason explained during the constitutonal convention that judges "could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course."

Until the twentieth century, judges usually adhered to this principle that a statute could only be deemed unconstitutional in case of a clear contradiction. However, this presumption of constitutionality weakened somewhat during the twentieth century, as exemplified by the Supreme Court’s famous footnote four. Nevertheless, the federal courts have not departed from the principle that courts may only strike down statutes for unconstitutionality.

See also

• Judicial interpretation
• Marbury v. Madison