Components of Judicial Review
Applicability judicial review applies to legal persons who include individuals and corporate entities
Right to enumerated due process The US constitution puts restrains on the judiciary, the executive and the legislature. The restrains acts as checks and balances to ensure that the three arms of government are working within their mandate are entrenched in the constitution. The Due Process Clause provides solutions to people whose rights and liberties are being denied by a process or law that conflicts with constitution.
Rights to enumerated due process In addition to the remedial interpretation that the Supreme Court places on the constitution, it also attributes substantive and procedural components to the same. This means that the Supreme Court also relies on the constitution for legal procedures (determine how laws should operate) and legal substance (what the constitution should do and or prohibit)
Procedural due process this refers to the procedural rights provided for under the bill of rights. Under this, no law enforcement, regulations, statutes or actions should deny people the right to life, liberty and or property
Which case established this power of the Supreme Court
Judicial review is not mentioned in the Constitution of the United States. The powers granted to the Supreme Courts to overturn laws running contrary to the Constitution were used as far back as 1787 in several states. With the passing of the Judiciary Act by Congress in 1789, federal courts were given powers of judicial review over both the Congress and the Executive. The powers were only first put into effect in 1796 during the Hylton v. Virginia case held in the US Supreme Court. In 1803, the judicial review in a first ever case stroke down an act of congress in Marbury v. Madison citing article III of the US Constitution and declaring the 1789 Judiciary Act unconstitutional. The act in itself purported to add more jurisdiction to the supreme court, something that the preceding judge, Justice Marshall said that congress had no powers to do. As such, the justice declared that the Judiciary Act and the Constitution were in conflict of each other. The judge argued that the Act of Congress is not law, and since the court could only abide by the Constitution, he declared the Act of Congress unconstitutional.
In his argument, Marshall stated, section 13 of the 1789 Judiciary Act is unconstitutional as it purports to increase the original jurisdiction of the Supreme Courts beyond what the constitution allows. Congress should not pass laws that contradict the Constitution and when it does, it is the role of the courts to interpret the same and use only what the constitution permits.
Judicial review versus Democratic Theory
According to Article III of the US Constitution, the judicial power of the government is vested on the Supreme Court. Additionally, the article refers indicates that Congress may choose to confirm original rules of the Supreme Court. This means that the court has powers to decide if any act of Congress or the Executive enactments contravenes the constitution, in which case, the courts have the mandate to overturn the same. Judicial review contradicts democratic theory because a constitution (which is an unelected branch of government) checks Congress and Executive powers, which are directly elected by the people. Opponents of judicial review states that the courts takes the place of law making thus denying congress, which is a representation of the people, its rightful role of making laws that serve the citizenry well. Critics of the same have proposed that if the Supreme Court strikes down legislation that is considered vital for the rights and liberties of the American people, the president and the Congress has the right to deny its (Supreme Court) verdicts. The argument behind this is that the Supreme Court has become too supreme and less accountable over the years since the judicial review came into place. More to this, the courts are seen as less developmental and more reactionary thus posing a danger to the countrys progress through hindering the enactment of good developmental legislation.
Under the judicial review powers, the Constitution is upheld in cases that pertain any treaties that the United States sign, cases of admiralty and maritime jurisdiction, any cases where the US is a party, Controversies between US citizens and people from other countries, controversies among other countries and their citizens, controversies among people in different US states and all cases affecting ambassadors or foreign missions of the United States.
In their defense to critics, judges state that they swore to provide equal justice under the law, by making justice the guardian of liberty
Judiciary Still the Weakest Arm of Government
The judiciary in spite of the powers granted to it under judicial review is perceived by many Americans as the weakest arm of the government. Some analysts state that this is because judiciary has only judgment but neither the will nor the force necessary to make it a force to reckon with. The Executive on the other hand has the honor of dispensing whatever it seems necessary just as long as Congress and the people back it, whole the legislature commands the budgets as well as the rules that govern the rights and duties of each citizen. While the Executive and the Legislature work hand-in hand, more often the Judiciary works alone. Just as old clich would suggest, there are strength in numbers and the Judiciary clearly lacks the numbers.
Often, the judiciary has to rely on the help of the Executive arm of the government for its judgments to be effective. Consequently, it is clear that the liberties of the people cannot suffer from the judiciary for as long as the judiciary remains a distinct entity from the executive and the legislature. However, people would have more reason to fear losing their democratic space and liberties should the judiciary ever decide to join forces with either the Executive or the Legislature.
However, considering that the separation of the three arms of government is an indispensable element of the Constitution, it is almost certain that they will remain distinct. Still, even when the judiciary flexes its muscles under the judicial review, history has proven that the Executive and the Legislature can go around such powers. A case in point is Franklin D. Roosevelts court packing plan that was a reaction to the many Supreme Court rulings under his tenure. Luckily, the plan was overturned by Congress.
Countering Judicial Review by People and Their Elected Representatives
From the very beginning, judicial review has set the precedent of overruling laws or ideals that are not in the Constitution. This means that for people to ensure that the Supreme Court does not have a basis to overturn legislation, they would have to make the same part of the Constitution. So far, the Constitution has had 27 amendments to make it respond to the needs of the people. A more recent case where the people and their representatives countered the powers granted to the Judiciary by the judicial review is the response by congressional leaders to a Supreme Court decision restricting campaign spending. In their argument, congressional leaders stated that it is time they took the powers to govern campaigns and elections individually, rather than as corporations as clearly provided for in the Constitution. Further, they argued that the ruling by the court denies people the right to be heard in the political process.
In the classic example that the law is made for the people and not the people for the law, people and their elected leaders can also vote, petition or mobilize efforts to overturn decisions of the Supreme Court. This is known as popular constitutionalism, and applies where people insist on their understanding and interpretation of the fundamental laws in the Constitution. Although popular constitutionalism is rare and only possible when people are sufficiently outraged or angered by ruling by the High Court, it is a possible substitute mechanism to counter judicial supremacy and all its faults. If people insist on observing their understanding of constitutional provisions, it is clear that such would generate meaning for the same thus establishing an interpretation through which the judges could even base their rulings in future.
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