Gavin Howe
The concept of judicial review gives judges the power to declare laws unconstitutional. This was established in the landmark case of Marbury v. Madison, where Chief Justice John Marshall stated that it is the duty of the judiciary to interpret the law and decide which laws violate the Constitution. If a law is deemed unconstitutional, judges may choose to nullify it, as stated by James Madison, or declare it void, as suggested by George Mason. Judicial review acts as a check on the legislature, preventing the excessive exercise of legislative power. However, judges must be cautious not to usurp the legislative duty to create laws and respect the separation of powers. In the United States, the Supreme Court has the final say on what is constitutional, and while it can act unconstitutionally, it relies on other branches of government to respect and enforce its rulings.
| Characteristics | Values |
|---|---|
| Declare laws unconstitutional | Part of the system of separation of powers |
| Apply state constitution | Over an act of the legislature that was inconsistent with the state constitution |
| Interpret the law | Decide which laws violate the Constitution |
| Protect against excessive exercise of legislative power | --- |
| Strike down acts of Congress | The US Supreme Court has held 176 Acts of Congress unconstitutional as of 2014 |
| Strike down laws | The US Supreme Court has held 483 laws unconstitutional in whole or in part during 1960-2019 |
| Nullify unconstitutional laws | "A law violating a constitution established by the people themselves, would be considered by the Judges as null & void." – James Madison |
| Impeach judges | If the Supreme Court does something unconstitutional, the recourse includes impeaching the judges |
| Amend the constitution | A possible remedy if the Supreme Court acts unconstitutionally |
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What You'll Learn
Judges can declare laws unconstitutional
The power of judges to declare laws unconstitutional is part of the system of separation of powers. This power is referred to as judicial review. Judicial review allows judges to protect against legislative encroachment and acts as a check on the legislature, preventing the excessive exercise of legislative power.
Judicial review was first established in the United States in the landmark case of Marbury v. Madison, where the Supreme Court struck down an act of Congress as unconstitutional. Since then, the Supreme Court has held 176 Acts of Congress unconstitutional as of 2014 and 483 laws unconstitutional in whole or in part between 1960 and 2019.
During the debates at the Constitutional Convention, the Founding Fathers made several references to judicial review. James Madison stated that "A law violating a constitution established by the people themselves, would be considered by the Judges as null & void." Similarly, George Mason said that federal judges "could declare an unconstitutional law void." However, he clarified that this power only extends to laws that are unconstitutional and does not give judges the general power to strike down all laws.
While judges have the duty to interpret the law and decide which laws violate the Constitution, they must be careful not to usurp the legislative duty to create laws. Additionally, the power of judicial review does not extend to determining a constitutional amendment to be unconstitutional, as amendments become part of the Constitution once ratified.
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Judges can be impeached
The impeachment of judges is a possible solution if the Supreme Court of the United States does something unconstitutional. The US Supreme Court cannot perform any unconstitutional actions, and if they do, the recourse of the majority of the legislature and executive is to pass laws to correct the issue, and impeach the judges.
The impeachment of judges is also supported by the concept of judicial review, which was established in the landmark decision of Marbury v. Madison. This was the first Supreme Court decision to strike down the act of Congress as unconstitutional. Judicial review indicates that the power of judges to declare laws unconstitutional was part of the system of separation of powers. The courts' power to declare laws unconstitutional would provide a check on the legislature, protecting against excessive exercise of legislative power.
The Founding Fathers also made references to the concept of judicial review during the debates at the Constitutional Convention. They stated that the federal judiciary, through its power to declare laws unconstitutional, already had the opportunity to protect against legislative encroachment.
Therefore, judges can be impeached if they enforce an unconstitutional law, as they become complicit in the act and are considered lawbreakers. The impeachment of judges is a possible solution to unconstitutional actions by the Supreme Court, and it is supported by the concept of judicial review and the Founding Fathers' references to it.
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Judges can interpret the law
Interpreting the law is a key function of judges. In the US, the Supreme Court has the power to interpret the law and decide which laws violate the Constitution. This is known as judicial review, and it was established in the landmark decision of Marbury v. Madison, where Chief Justice John Marshall famously stated:
> It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.
Judicial review allows judges to declare laws unconstitutional and protect against excessive legislative power. For example, James Madison said:
> A law violating a constitution established by the people themselves, would be considered by the Judges as null & void.
George Mason also commented that federal judges "could declare an unconstitutional law void," but he emphasised that this power was limited to laws that are explicitly unconstitutional.
The Founding Fathers discussed judicial review during the Constitutional Convention, particularly in reference to the Virginia Plan, which proposed a "council of revision" that would include the president and federal judges. This council would examine and accept or reject new federal laws, similar to a presidential veto. However, some delegates objected to the inclusion of federal judges, arguing that the judiciary already had the power to protect against legislative encroachment through judicial review.
The power of judges to interpret the law and declare laws unconstitutional is a crucial aspect of the system of separation of powers. While judges can interpret the law, they must be careful not to usurp the legislative duty to create laws.
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Judges can be overruled by the constitution
The concept of judicial review gives judges the power to declare laws unconstitutional, thereby providing a check on the legislature and protecting against the excessive exercise of legislative power. This power is part of the system of separation of powers.
In the US, the Supreme Court has the final say on what is constitutional. If the Supreme Court rules that a law is unconstitutional, it is considered null and void. For example, as of 2014, the United States Supreme Court has held 176 Acts of the U.S. Congress unconstitutional.
However, it is important to note that judges can also be overruled by the constitution. This occurs when the judiciary interprets the law and decides that a particular law violates the constitution. In such cases, the judiciary must respect the constitution and declare the law unconstitutional. This is exemplified in the landmark case of Marbury v. Madison, where the Supreme Court struck down an act of Congress as unconstitutional, with Chief Justice John Marshall stating, "It is emphatically the duty of the Judicial Department to say what the law is."
Additionally, any judge who enforces an unconstitutional law becomes complicit in the unconstitutionality and is considered a lawbreaker. Scholar Larry Kramer agreed with this sentiment, emphasizing that judges must uphold the constitution and not enforce laws that contradict it.
The power of judicial review is not a general power to strike down all laws but only those that are explicitly unconstitutional. This power is intended to protect the rights of citizens and ensure that laws do not infringe upon the boundaries set by the constitution.
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Judges can be overruled by Congress
The US Constitution establishes a separation of powers, which prevents Congress from directly overturning federal court decisions. However, Congress can exert control over the judiciary in several ways. Firstly, Congress can impeach and remove federal judges, including Supreme Court justices, for misconduct. Secondly, the Senate confirms the President's nominations to the federal judiciary, including the Supreme Court. Thirdly, Congress has the authority to create lower federal courts and determine their structure and jurisdiction.
Congress can also influence the interpretation of laws and the Constitution. The Supreme Court is the highest court in the US and has the final say in interpreting the Constitution and federal laws. However, when Congress disagrees with the Supreme Court's interpretation of the Constitution, it can propose a constitutional amendment with a two-thirds majority in both houses, which must then be ratified by three-quarters of the states. While this process is challenging and rarely successful, Congress can sometimes achieve its goals without amending the Constitution by enacting statutes that extend constitutional principles through its enumerated powers, such as the ability to regulate commerce and attach conditions to funding provided to states.
Congress can also regulate the modes and practices of proceeding in inferior federal courts and pass new legislation or amend existing laws to address issues raised by court decisions. For example, Congress can pass a statute that guarantees the right to abortion to the extent that medical care involves commercial activities that Congress can regulate. Additionally, Congress can use its Spending Clause power to offer funding to states that decriminalize abortion under their laws, providing states with an incentive to change their laws.
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Frequently asked questions
Judges can declare laws unconstitutional and void, providing a check on the legislature and protecting against excessive legislative power.
If the Supreme Court acts unconstitutionally, the majority of the legislature and executive can pass laws to correct the issue and impeach the judges. Congress can also pass a law to change the number of judges on the Supreme Court, though this is considered a "nuclear option".
The US Supreme Court determines whether something is constitutional or unconstitutional. If they say something is constitutional, then it is constitutional.
