Cameron Miranda
The Supreme Court has the power to declare laws unconstitutional through judicial review. Judicial review is the legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a state constitution, or the United States Constitution. The Founding Fathers made several references to the concept of judicial review during the Constitutional Convention, and it has since become an established part of constitutional law in the United States. The Supreme Court has final appellate jurisdiction in all cases arising under the Constitution, giving it the ultimate authority to decide whether statutes are consistent with it. As of September 2017, the Supreme Court had held portions or the entirety of some 182 Acts of Congress to be unconstitutional.
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What You'll Learn
- The Supreme Court has the ultimate authority to decide if laws are consistent with the Constitution
- The power to declare laws unconstitutional is an implied power derived from Article III and Article VI
- The Supreme Court has held portions or entirety of 182 Acts of Congress unconstitutional as of 2017
- The concept of judicial review was familiar to the framers and the public before the Constitutional Convention
- Landmark decisions by the Supreme Court have confirmed the inferred authority for judicial review
The Supreme Court has the ultimate authority to decide if laws are consistent with the Constitution
The concept of judicial review was familiar to the Founding Fathers, who made several references to it during the Constitutional Convention. For example, George Mason explained that judges could "declare an unconstitutional law void". The first case decided by the Supreme Court involving a direct challenge to the constitutionality of an act of Congress was in 1796, Hylton v. United States, which confirmed the Court's authority for judicial review.
Over time, the Supreme Court has used its power of judicial review to strike down portions or the entirety of Acts of Congress that infringe on freedoms or contradict the Constitution. For instance, in Matal v. Tam (2017) and Iancu v. Brunetti (2019), the Supreme Court struck down a portion of the 1946 Lanham Act as it infringed on freedom of speech.
The Supreme Court's authority to declare laws unconstitutional is a crucial check on legislative power, ensuring that laws passed by Congress do not violate the Constitution and protecting the rights and freedoms of citizens. However, it is important to note that this power is not without its critics, with some arguing that the Supreme Court is overstepping its authority by striking down laws.
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The power to declare laws unconstitutional is an implied power derived from Article III and Article VI
The US Constitution does not explicitly mention the power of judicial review. Instead, the Supreme Court's power to declare laws unconstitutional is considered an implied power derived from Article III and Article VI.
Article III of the Constitution outlines the federal judicial power, stating 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." It further states that the judicial power extends 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 implies that the Supreme Court has the authority to interpret and rule on the constitutionality of laws.
Article VI of the Constitution requires federal and state officeholders to be bound "by Oath or Affirmation, to support this Constitution." This means that officials must follow the Constitution, even if their own interpretations may differ. This article further reinforces the idea that the Supreme Court has the final say in interpreting the Constitution and determining whether a law is unconstitutional.
The principle that courts can strike down laws for unconstitutionality has been consistently followed by federal courts. This means that a court cannot invalidate a statute unless it violates the Constitution. This power of judicial review was first exercised by the Supreme Court in 1796 in Ware v. Hylton, where the Court found a Virginia statute inconsistent with a peace treaty between the US and Great Britain.
While some argue that judicial review by federal courts is unconstitutional, the power to declare laws unconstitutional is an essential aspect of the Supreme Court's role in interpreting the Constitution and ensuring that laws align with it. This implied power allows the Court to safeguard the principles and rights enshrined in the Constitution.
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The Supreme Court has held portions or entirety of 182 Acts of Congress unconstitutional as of 2017
The Supreme Court of the United States is the highest court in the federal judiciary, established by Article III of the US Constitution. The Judiciary Act of 1789 gave the Supreme Court original jurisdiction to issue writs of mandamus, or legal orders compelling government officials to act in accordance with the law.
The Supreme Court's power to declare laws unconstitutional stems from its authority to perform judicial review, which is the legal power to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a state constitution, or the US Constitution. While the US Constitution does not explicitly define the power of judicial review, it has been inferred from its structure, provisions, and history.
The first case decided by the Supreme Court involving a direct challenge to the constitutionality of an Act of Congress was Hylton v. United States in 1796, which concerned the Carriage Act of 1794 and its imposition of a "carriage tax". However, the Supreme Court upheld the tax, finding it constitutional. In 1803, Marbury v. Madison became the first case where the Court explicitly asserted its authority to strike down a law as unconstitutional.
As of 2017, the Supreme Court has held portions or the entirety of 182 Acts of Congress unconstitutional. Some notable examples include:
- United States v. Romano (1965): The Court held that a provision of the Internal Revenue Code creating a presumption of guilt for individuals found at the site of an unregistered still was unconstitutional, as the presumption was not a legitimate or reasonable inference of the defendant's guilt.
- Leary v. United States (1969): The Court found a provision of the Narcotic Drugs Import and Export Act unconstitutional under the Due Process Clause of the Fifth Amendment, as it presumed that possessors of marijuana were aware of its illegal importation without sufficient evidence.
- Matal v. Tam (2017): The Court ruled that a provision of the Lanham Act prohibiting the registration of trademarks that may "disparage" or "bring into contempt" any "persons, living or dead" violated the First Amendment's Free Speech Clause.
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The concept of judicial review was familiar to the framers and the public before the Constitutional Convention
In the Virginia convention, Chief Justice John Marshall observed that if Congress were to make a law not warranted by any of the powers enumerated, it would be considered by the judge as an infringement of the Constitution, which they are to guard. Madison and Hamilton also asserted the power of judicial review in their campaign for ratification. The Federalist No. 39 (James Madison); id. Nos. 78, 81 (Alexander Hamilton).
During the debates at the Constitutional Convention, fifteen delegates from nine states made comments regarding the power of the federal courts to review the constitutionality of laws. All but two of them supported the idea that the federal courts would have the power of judicial review. Some delegates to the Constitutional Convention did not speak about judicial review during the Convention, but did so before or after the Convention. Including these additional comments by Convention delegates, scholars have found that twenty-five or twenty-six of the Convention delegates made comments indicating support for judicial review, while three to six delegates opposed judicial review. One review of the debates and voting records of the convention counted as many as forty delegates who supported judicial review, with four or five opposed.
The concept of judicial review was already established at the time of the Founding. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters. There were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions.
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Landmark decisions by the Supreme Court have confirmed the inferred authority for judicial review
The US Constitution establishes the Supreme Court and permits Congress to decide how to organise it. Congress first exercised this power in the Judiciary Act of 1789, which created a Supreme Court with six justices.
In Marbury v. Madison (1803), the Supreme Court established the concept of judicial review. In this case, the Court had to decide whether an Act of Congress or the Constitution was the supreme law of the land. The Court held that an Act of Congress that is contrary to the Constitution could not stand.
In McCulloch v. Maryland (1819), the Supreme Court held that the Constitution gives the federal government certain implied powers. The Court ruled that a tax imposed by Maryland on the Bank of the United States unconstitutionally interfered with federal supremacy.
In Plessy v. Ferguson (1896), the Supreme Court sanctioned segregation by upholding the doctrine of "separate but equal". However, in 1954, the Court reversed its Plessy decision, declaring that "separate schools are inherently unequal".
In Mapp v. Ohio (1961), the Supreme Court held that illegally obtained material cannot be used in a criminal trial. This case applied the exclusionary rule from Weeks v. United States (1914) to the states.
These landmark decisions by the Supreme Court have confirmed the inferred authority for judicial review, ensuring that each branch of government recognises the limits of its own power and protecting civil rights and liberties.
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Frequently asked questions
The Supreme Court is the highest court in the judicial system of the United States.
Judicial review is the legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a state constitution, or the United States Constitution.
The Supreme Court has final appellate jurisdiction in all cases arising under the Constitution. This means that the Supreme Court has the ultimate authority to decide whether statutes are consistent with the Constitution and can declare laws unconstitutional.
The Supreme Court reviews the law to determine if it contradicts or violates the provisions of the United States Constitution. If a law is found to be inconsistent with the Constitution, it is declared unconstitutional.
Yes, in the 2017 case of Matal v. Tam, the Supreme Court struck down a portion of the 1946 Lanham Act as it infringed on freedom of speech.
