What is Judicial Review? Why is it Controversial? Lesson 21

Judicial Review The power of the judicial branch of the government to decide if acts of the legislative or executive branches violate the Constitution If the court decides this, it declares the action null and void  the law is not to be obeyed or enforced In the US this was not an original power of the judicial branch (though the states had it)

Should the Supreme Court have this power? It’s not mentioned in the Constitution, but the Founders were familiar with this power from the British government allowing the Privy Council to veto laws passed by colonial legislatures After the Revolution some state courts declared some laws unconstitutional

How did the Court get this power? The Founders did think that some part of government should have the power to decide if other parts of gov’t had violated the higher law The case of Marbury v Madison (1803) established the Court’s power in a controversial case

Marbury v Madison (1803) Before John Adams left office in 1800 (Jefferson won the election), he and the Federalists appointed a lot of new Federalist judges to fill the seats in the new federal courts they created, before turning power over to Jefferson Jefferson didn’t want more Federalists serving as judges, so he told Madison (Secretary of State) not to deliver their commissions (letter saying you have the job). William Marbury wanted his commission to serve as a justice of the peace in the District of Columbia and he asked the Court to issue a writ of mandamus (a court order that forces a public official to do what they are supposed to do)

Chief Justice John Marshall has a major problem— –If they order Madison to deliver the commission and President Jefferson orders him not to, the Court will look weak and powerless (the executive is supposed to carry out the laws) –If the Court didn’t order him to do it, the Court will look weak and powerless Marshall solves the problem by asking 3 questions: –Does Marbury have a right to his commission? Yes.

Do the laws of the country give him a way to set things right? –Yes—the official broke the law and Marbury has the right to a legal remedy Is the writ of mandamus the right legal remedy? –No—this is not part of the Supreme Court’s original jurisdiction. Marbury would have to go to a lower court first, then appeal to the Supreme Court Marshall does not order the documents to be delivered, thus avoiding embarrassment. But he does give the Court a lot more power by giving it the power of judicial review Still controversial today—people don’t agree on how the courts should use their power or how to interpret the Constitution

4 methods of interpretation Using the literal meaning of the words in the Constitution –“plain meaning” of the words at the time they were written Using the intentions of those who wrote the Constitution –Looking at what the Framers meant by it since the Constitution doesn’t reveal its own meaning

Using basic principles and values in the perspective of history –As our nation matures, so does our understanding of the principles of natural rights and republicanism and constitutionalism. Justices should not hold back social progress by sticking to outmoded interpretations Using contemporary social values in terms of today’s policy needs –Justices should use contemporary social values in interpreting the Constitution—but this can give them too much power to change it. Controversial decisions should be left to elected officials, who represent the will of the people, or to the amendment process