10.2 Judicial Review and Interpretation

The Supreme Court's power of judicial review is a cornerstone of the American legal system. It allows courts to strike down laws that violate the Constitution, serving as a crucial check on the other branches of government.

This topic explores the origins of judicial review, its impact on the balance of power, and debates over constitutional interpretation. It highlights how this power shapes American democracy and protects individual rights.

Judicial Review: Concept and Basis

Definition and Constitutional Implications

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• Judicial review grants courts the power to review and invalidate laws or executive actions deemed unconstitutional
• The Supremacy Clause in Article VI and the judiciary's role in interpreting the law imply the concept of judicial review, although not explicitly mentioned in the Constitution
• Judicial review enables the judicial branch to check the legislative and executive branches, ensuring their actions align with the Constitution (separation of powers, checks and balances)

Importance as a Check on Other Branches

• Judicial review prevents the legislative and executive branches from overstepping their constitutional authority
• The Supreme Court has struck down laws and executive actions that violate the Constitution in cases involving civil rights (Brown v. Board of Education), free speech (Texas v. Johnson), and the separation of powers (United States v. Nixon)
• Critics argue that judicial review can lead to an overreach of judicial power, with unelected judges making decisions that should be left to the political branches
• Supporters maintain that judicial review is essential for preserving individual rights and liberties and ensuring that the government operates within the bounds of the Constitution

Marbury v. Madison: Establishing Judicial Review

Background and Context

• Marbury v. Madison (1803) was a landmark Supreme Court case that firmly established the principle of judicial review in the United States
• The case arose from a dispute over President John Adams' appointment of William Marbury as a justice of the peace in the final days of his presidency
• Chief Justice John Marshall's opinion asserted the Supreme Court's authority to review the constitutionality of acts of Congress and the executive branch

Outcome and Implications

• The Court ruled that Marbury had a right to his commission but held that the Supreme Court did not have the power to force the Secretary of State to deliver the commission due to the unconstitutionality of the Judiciary Act of 1789
• The decision helped define the boundary between the executive and judicial branches of the federal government
• Marbury v. Madison established the Supreme Court's role as the ultimate interpreter of the Constitution and its power to declare laws unconstitutional (judicial review)
• The case set a precedent for the Court's involvement in resolving disputes between branches of government and protecting individual rights

Constitutional Interpretation: Originalism vs Living Constitutionalism

Originalism

• Originalism seeks to determine the original meaning or intent of the Constitution as understood by its framers and ratifiers
• Originalists often look to historical sources, such as the Federalist Papers and the records of the Constitutional Convention, to discern the original meaning
• This approach emphasizes the fixed nature of the Constitution and the importance of adhering to its original meaning (strict constructionism)
• Originalists argue that this approach provides a more objective and stable basis for constitutional interpretation, limiting judicial discretion

Living Constitutionalism

• Living constitutionalism views the Constitution as a dynamic document that should be interpreted in light of contemporary values, social needs, and evolving understandings of rights and liberties
• Proponents argue that the Constitution's broad language allows for adaptation to changing times and circumstances
• This approach allows for greater flexibility in interpreting the Constitution to address modern challenges (expansive interpretation)
• Living constitutionalists believe that the Constitution should be interpreted in a way that reflects societal progress and changing norms

Comparison and Debate

• The debate between originalism and living constitutionalism often arises in cases involving controversial issues, such as privacy rights (Griswold v. Connecticut, Roe v. Wade), same-sex marriage (Obergefell v. Hodges), and the scope of federal power (NFIB v. Sebelius)
• While originalism prioritizes adherence to the original meaning, living constitutionalism allows for adaptability to address evolving societal needs
• Critics of originalism argue that it can lead to outdated interpretations that fail to protect individual rights, while critics of living constitutionalism contend that it allows for excessive judicial activism and subjectivity

Judicial Review: Impact on Power Balance

Preserving Checks and Balances

• Judicial review allows the judicial branch to serve as a check on the legislative and executive branches, preventing them from overstepping their constitutional authority
• This power helps maintain the separation of powers and ensures that no single branch becomes too powerful
• Landmark Supreme Court decisions, such as Youngstown Sheet & Tube Co. v. Sawyer (limiting executive power) and United States v. Lopez (limiting congressional power under the Commerce Clause), demonstrate the Court's role in preserving the balance of power

Protecting Individual Rights and Liberties

• Judicial review has enabled the Supreme Court to strike down laws and executive actions that violate individual rights and liberties guaranteed by the Constitution
• Notable cases include Brown v. Board of Education (desegregation), Gideon v. Wainwright (right to counsel), and Obergefell v. Hodges (same-sex marriage)
• The exercise of judicial review has played a crucial role in advancing civil rights, due process, and equal protection under the law

Criticisms and Debates

• Critics argue that judicial review can lead to an overreach of judicial power, with unelected judges making decisions that should be left to the political branches (countermajoritarian difficulty)
• Some contend that the Supreme Court has, at times, exceeded its constitutional authority and engaged in judicial activism, such as in cases like Roe v. Wade and Citizens United v. FEC
• Supporters of judicial review maintain that it is essential for preserving the rule of law, protecting minority rights, and ensuring that the government operates within the bounds of the Constitution
• The proper scope and limits of judicial review continue to be debated, particularly in cases involving politically charged issues or questions of constitutional interpretation