Where Can You Find Judicial Review in the Constitution
The Constitutional Ground for Judicial Review
Recently, Lino Graglia published a review of Akhil Amar's new volume that made some claims about the basis for judicial review in the Constitution. Lino wrote:
Ramble law is the product of judicial review, the power of judges to invalidate policy choices fabricated by other officials of government on the ground that they are prohibited by the Constitution. Although the power obviously creates the danger of making the judiciary — more specifically, the Supreme Courtroom — superior to the legislature and the ultimate lawgiver, it is not explicably provided for in the Constitution. [MR note: does Graglia mean explicitly or explicably?] It was established and defended by Chief Justice John Marshall in the famous example of Marbury 5. Madison, however, on the ground that it is inherent in a written constitution. This was not right in that other nations had and take written constitutions without judicial review. Limiting judicial review to enforcement of a written Constitution does, nonetheless, serve the purpose of making information technology a tool of constitutionalism rather than simply a transference of policymaking power to judges.
Lino's merits is not entirely clear, but it can be interpreted as asserting that judicial review is not really in the Constitution. While Lino may or may not mean this, this merits nigh the lack of basis for judicial review used to be very mutual. It obviously supports nonoriginalism. If the power of judicial review is simply made upwards, then one might argue that there can be little objection to judges exercising that power past making things upwards as well.
Just judicial review is non merely made upwards. In recent years, scholars accept argued persuasively that the Framers expected judicial review of the Constitution. But, fifty-fifty more importantly, judicial review has a strong ground in the ramble text. While I cannot go review all of the arguments, I volition endeavour to hit the high points.
Offset, the Supremacy Clause expressly states that a course of judicial review exists:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the say-so of the Us, shall be the supreme police force of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary nevertheless.
Clearly, this is stating that state court judges must employ the Constitution rather than state statutes. Thus, Graglia'due south credible claim that judicial review is not expressly in the Constitution is mistaken every bit to judicial review of state laws, and Graglia'southward essay clearly indicates that he has such judicial review of land laws in heed.
Only the constitutional text also supports judicial review of federal statutes. This occurs in a number of different ways. First, at the time of the Constitution, constitutions were thought to take priority over statutes. Second, judges would as well have a role in determining that a statute conflicted with the constitution (every bit opposed to the alternative possibility that the Congress would take the sectional power to brand that determination). In the case of state statutes, the Constitution itself recognized that country courts would make the determination that the state statute conflicted with the Constitution (rather than country legislatures making the decision). So the same rule would make sense equally to federal statutes. In addition, the Constitution proclaims itself police force, which also suggests that judges should interpret it as they interpret other laws. Further, the Constitution provides that "This Constitution, and the laws of the U.s. which shall be fabricated in pursuance thereof . . . shall be the supreme law of the land." That suggests that only federal statutes consistent with the Constitution are supreme law of the land. This last provision is open to other interpretations, but significantly many people at the time of the framing interpreted information technology in that way. Encounter footnote 76 of this paper.
Source: https://lawliberty.org/the-constitutional-basis-for-judicial-review/
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