Keith Mack
The power to declare laws unconstitutional is a crucial aspect of judicial review, a concept that was familiar to the framers of the US Constitution and has been exercised by the Supreme Court of the United States. This power is derived from the principle of separation of powers, serving as a check on the legislature to prevent excessive lawmaking. While a suspicion of unconstitutionality is insufficient to strike down a statute, judges can declare a law null and void if it violates the constitution, as seen in cases involving freedom of religion, labour disputes, and privacy concerns.
| Characteristics | Values |
|---|---|
| Courts with the power of judicial review | Supreme Court of the United States |
| Federal courts | |
| State courts | |
| Judges | Federal judges |
| Any judge | |
| Criteria for declaring laws unconstitutional | "Irreconcilable variance" with the Constitution |
| Clear unconstitutionality | |
| Excessive exercise of legislative power |
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What You'll Learn
- The Supreme Court can declare laws unconstitutional
- The Founding Fathers supported the concept of judicial review
- Federal judges can declare laws void if they violate the constitution
- Unconstitutionality must be clear for American courts to strike down a statute
- Congress can pass laws that exceed their powers under the Constitution
The Supreme Court can declare laws unconstitutional
This view was shared by many at the time of the framing of the Constitution, including George Mason, who stated that federal judges "could declare an unconstitutional law void." However, he also emphasized that this power was limited to laws that were unconstitutional, and did not extend to all unjust or oppressive laws. James Madison concurred, stating that a law violating the Constitution "would be considered by the Judges as null and void."
The concept of judicial review was also discussed in the state ratifying conventions, with delegates asserting that the proposed Constitution would allow the courts to exercise this power. For example, James Wilson stated in the Pennsylvania ratifying convention that federal judges would exercise judicial review if a law was inconsistent with the powers vested in Congress.
The Supreme Court has used its power of judicial review to hold Acts of Congress unconstitutional in whole or in part. For example, in United States v. Brown (1965), the Court held that a provision of the Labor-Management Reporting and Disclosure Act of 1959, which made it a crime for a member of the Communist Party to serve as an officer or employee of a labor union, was unconstitutional. In another case, City of Boerne v. Flores (1997), the Court found that the Religious Freedom Restoration Act exceeded congressional power under Section 5 of the Fourteenth Amendment.
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The Founding Fathers supported the concept of judicial review
The Founding Fathers of the United States Constitution are often thought to have considered the judicial branch as an afterthought, believing that in a democracy, the elected branches would govern the country. However, this notion may be misleading. While the Supreme Court's role has evolved to become more political and powerful than the framers of the Constitution likely envisioned, the Founding Fathers did support the concept of judicial review, albeit with a different understanding of its scope and function.
One of the key Founding Fathers, Benjamin Franklin, understood that the government being formed was not a pure democracy but a republic, where the people are sovereign and choose representatives to act on their behalf. This fundamental principle of a federal republic established that the people's representatives are checked by the Constitution, with the Supreme Court having the final say in interpreting and enforcing it.
Alexander Hamilton, another influential Founding Father, wrote Federalist Paper No. 78 in 1788, which is considered one of the founding era's most important documents. In it, Hamilton addressed the nature of the Constitution and the role of the Supreme Court. While the power of judicial review was questioned during the constitutional ratification period, the Founding Fathers understood the importance of an independent judiciary in interpreting and enforcing the Constitution.
The Founding Fathers also recognised the need for checks and balances on judicial activism. They provided for the ability to amend the Constitution, allowing for a constitutional check on the Supreme Court's decisions. This power rests with the people, who can curb the Supreme Court's power of judicial review by amending the Constitution through their representatives in Congress.
In conclusion, while the specific powers and role of the Supreme Court may have evolved and expanded over time, the Founding Fathers did support the concept of judicial review. They understood the importance of an independent judiciary in interpreting and enforcing the Constitution, while also establishing checks and balances to prevent judicial activism and ensure the sovereignty of the people.
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Federal judges can declare laws void if they violate the constitution
The United States Constitution is the supreme law of the land. Federal statutes are only valid when they are made in pursuance of the Constitution. The power of judicial review allows federal judges to declare a law unconstitutional and void. This power is not explicitly mentioned in the Constitution, but it has been implied from the Supremacy Clause, which establishes the Constitution as the supreme law of the land.
The Supreme Court, the highest court in the land, has the final say on whether a right is protected by the Constitution or when a Constitutional right is violated. It also plays a crucial role in ensuring that each branch of the government recognizes its own power limits. The Court's ability to declare a Legislative or Executive act in violation of the Constitution was established in the case of Marbury v. Madison (1803).
The power of judicial review was discussed extensively during the framing of the Constitution. Several delegates, including James Madison, George Mason, and James Wilson, asserted that federal judges would have the authority to declare unconstitutional laws null and void. This belief was shared by many at the time, and there is no record of any delegate who argued against it.
It's important to note that the power of judicial review is not a general power to strike down all laws. As George Mason clarified, federal judges must uphold laws that are not plainly unconstitutional. This principle of deference to legislative bodies was also expressed by Justice Washington in an 1827 case, who stated that a law's validity should be presumed until its violation of the Constitution is proven beyond a reasonable doubt.
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Unconstitutionality must be clear for American courts to strike down a statute
The power to declare laws unconstitutional is a key tenet of the American judicial system. The concept of judicial review, where judges can deem a law void if it is found to be unconstitutional, is a familiar one in the US, with the Founding Fathers making several references to it during the debates at the Constitutional Convention. Alexander Hamilton, a lawyer and later a judge, explained in Federalist 78 that for a law to be struck down, it must be in "irreconcilable variance" with the Constitution.
The idea that the unconstitutionality of a law must be clear for it to be struck down was a common view at the time of the framing of the Constitution. George Mason, for instance, asserted that federal judges "could declare an unconstitutional law void", but that this power was limited to laws that were plainly unconstitutional. He stated that judges would have "the necessity [...] to give [other laws] a free course". In other words, laws that are not clearly unconstitutional should be allowed to stand.
James Madison, another Founding Father, agreed, stating that a law that violates the Constitution "would be considered by the Judges as null and void". The power of judicial review was seen as a check on the legislature, protecting against excessive legislative power. The courts' ability to strike down laws that are clearly unconstitutional acts as a balance to legislative power, ensuring that laws do not overreach and that the Constitution is upheld.
The Supreme Court of the United States has, on several occasions, held Acts of Congress to be wholly or partially unconstitutional. For example, in United States v. Brown (1965), the Court found that a provision of the Labor-Management Reporting and Disclosure Act of 1959, which made it a crime for a member of the Communist Party to serve as an officer or employee of a labor union, was unconstitutional. In Bartnicki v. Vopper (2001), the Court held that a federal prohibition on the disclosure of illegally intercepted electronic communications violated the First Amendment in a case where the disclosed conversation was "a matter of public concern".
These examples demonstrate that while the courts do have the power to strike down laws that are clearly unconstitutional, this power is exercised with caution and only when the unconstitutionality of a law is evident and irreconcilable with the Constitution.
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Congress can pass laws that exceed their powers under the Constitution
The United States Congress, established by Article I of the Constitution, is made up of the House of Representatives and the Senate. The Constitution grants Congress the sole authority to enact legislation and declare war, the right to confirm or reject many Presidential appointments, and substantial investigative powers.
Congress, as one of the three coequal branches of government, is ascribed significant powers by the Constitution. All legislative power in the government is vested in Congress, meaning that it is the only part of the government that can make new laws or change existing ones. Congress is empowered to enact laws deemed "necessary and proper" for the execution of the powers given to any part of the government under the Constitution.
The legislative process emphasizes the protection of the minority, allowing all sides to be heard and make their views known. A proposal cannot become a law without consideration and approval by both Houses of Congress. As the majority of laws originate in the House of Representatives, the discussion will focus principally on the procedure in that body.
However, it is important to note that while Congress has the power to pass laws, the President may veto these bills. In such cases, Congress may override the veto by a two-thirds vote in both the Senate and the House of Representatives.
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Frequently asked questions
Alexander Hamilton explained in Federalist 78 that the standard of review should be "irreconcilable variance" with the Constitution. In other words, there must be a clear conflict with the Constitution for a law to be deemed unconstitutional.
The power to declare laws unconstitutional lies with the federal judiciary, specifically the federal courts and judges. This power is known as judicial review and is considered part of the system of separation of powers, providing a check on the legislature.
No, according to George Mason, the power of judicial review is limited to striking down laws that are unconstitutional. While judges can declare an unconstitutional law void, they must allow other laws, even unjust or oppressive ones, to stand if they do not directly conflict with the Constitution.
