Explain Judicial Review Using Two Case Examples

Explain Judicial Review using two case examples.

As soon as civilizations created constitutions, actions were being called unconstitutional by those who opposed them. In some instances, unconstitutional acts were the subject of revolution, regicide, or as happened in the American political system, the declaration of a Judiciary body. American judicial review can broadly be defined as the power of this such judicial branch of the government to determine whether or not the acts of all branches of the government and government official comply with the Constitution. It derives from the doctrine of "judicial supremacy", which in turn legitimises this definition by declaring that "both the letter and spirit of the Court's constitutional determinations bind all branches of government and government officials." (Siegel, Ely, McCloskey). Originating as far back as the late 1700's, this practice of judicial review, has allowed judges, thus, to maintain limited government and the rule of the people and to uphold the supremacy of the Constitution, by using the power allocated to them "to declare "null and void" any acts of the national government or of the states which they themselves deem contrary to the Constitution." (Irish and Prothro, 522). Thus, in effect the law becomes "what the judges say it is" (Irish and Prothro, 522).

Judicial Review as we know it today, (an act exercised by both the state and federal judiciary alike, and untimely the Supreme Court) has its roots firmly planted in the later half of the nineteenth century, several years indeed before the monumentally important and frequently cited case of Marbury Vs Madison of 1903. While the Founding Fathers (farmers and arbitraries alike) didn't explicitly spell out the power of judicial review in the Constitution, "they probably intended the judiciary to have such powers" (Irish and Prothro, 523). They weren't completely utopian in their views, however, and probably realised of their own volition that "to sacrifice constitutional government and compromise the rule of law in the hope of rectifying injustices is to strike a bargain with the devil." (Dr. Robert P. George). Instead, it was from Section 5, the later added separation clause to the Vermont Constitution, that the practice of judicial review was informally legitimised in 1786. This separation of powers was also known as the Judiciary Act. This Act itself however, has its origins even further back in the annals of American history. It was unquestionably influenced by the work of the Fist Council of Censors, who, as far back as 1785, detested the practice of so-called legislation for individuals. In retaliation they readily agreed (on numerous occasions) to hear the complaints of dissatisfied parties fresh from court and enact law to relieve them, even when (and often though) their decisions frequently attempted to undo what the court had previously done. Indeed, "some might think it took the Council of Censors to start the engine of judicial review." (Paul S. Gillies).

It was the aforementioned case of Marbury Vs. Madison, however, which formally legitimised judicial review in 1903. Chief Justice John Marshall (the presiding judge) famously asserted that, "... the theory of every such government must be that an act of the legislature repugnant to the Constitution is void." (Patrick 2001, 206). The thought behind such a statement was undoubtedly that, if the Constitution is understood to be the supreme law of the land, then it follows that when, given the power to do so, the Supreme court ought to favour the constitution when any conflict arises between ordinary law and the Constitution. The premise of Marshall's argument was based on an amalgam of three intertwining, yet paradoxically contradictory element of (dominant) Republican political culture; popular sovereignty, judicial independence and fundamental law. Popular sovereignty reflects a situation where people as authors of the Constitution allowed each branch of the present government its own limited sphere of power. Judicial independence means that the Court's view of the Constitution cannot be controlled by any other branch of government. Fundamental law means that generally accepted moral principles (natural law) that should remain in force. Thus an enduring precedent had been set that would prove to be "the foundation for the federal judicial branch's power to declare unconstitutional any acts of coordination branch's of the federal government, the legislative and executive branches, which violate the Constitution." (Nelson 2000, 51-74).

While the power of judicial review has been used sparingly and with judicial restraint since "the rise of pragmatic jurisprudence and legal realism in the early twentieth century," (Siegel, Ely, McCloskey) there have been certain developments within American society, which managed to provoke controversy. Indeed, it could well be said that each and every case that goes to the Supreme Court "involves a controversy of paramount national importance." (Irish and Prothro, 524). One such case, which challenged the Court's view of the basic right to privacy, namely the Griswold V. Connecticut case, was prosecuted in 1965. Sue Griswold, the Executive Director of the Planned Parenthood League of Connecticut along with the Medical Director of the League were engaging in the practice of giving information and other medical advice to married couples concerning birth control. Following their subsequent conviction (for violating a 1879 Connecticut law which criminalised the provision of counselling to married couples for the purpose of preventing conception) the case was brought before the Supreme Court. The issue before the court was; "Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counselled in the use of contraception?" (Goldman). Adding to the Judges' difficulty in reaching a decision, was the fact that, (rather like the concept of judicial review itself) the right to privacy was neither explicitly mentioned nor implied in the constitutional text. Ultimately, however, the Supreme Court recognised that "the authors of the Constitution did not intend the first eight amendments to exhaustively list all the right which the people had". (Anon., see Bibliography). In ruling in favour of Ms. Griswold on the grounds that the "the statute forbidding the use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights" (Anon., see Bibliography), the Court formally acknowledged that together, the first, third, fourth, and ninth

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