Saturday, December 19, 2015

What roles does judicial review play in our governmental system of checks and balances?

Judicial Review is the power of the Courts to declare Acts
of Congress or the States as well as of the President or other governmental officials to
be contrary to the meaning and intent of the Constitution. There is no specific
provision in the Constitution to provide for Judicial Review, but the power was inferred
by Chief Justice John Marshall in the case of Marbury vs.
Madison
.


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The powers of the legislature are defined, and
limited; and that those limits may not be mistaken, or forgotten, the constitution is
written. To what purpose are powers limited, and to what purpose is that limitation
committed to writing, if these limits may, at any time, be passed by those intended to
be restrained? The distinction, between a government with limited and unlimited powers,
is abolished, if those limits do not confine the persons on whom they are imposed, and
if acts prohibited and acts allowed, are of equal obligation. It is a proposition too
plain to be contested, that the constitution controls any legislative act repugnant to
it; or, that the legislature may alter the constitution by an ordinary
act.



Between these alternatives there is no
middle ground. The constitution is either a superior, paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative acts, and like other acts,
is alterable when the legislature shall please to alter
it.



If the former part of the alternative be
true, then a legislative act contrary to the constitution is not law: if the latter part
be true, then written constitutions are absurd attempts, on the part of the people, to
limit a power, in its own nature
illimitable



[T]he particular phraseology of the
constitution of the United States confirms and strengthens the principle, supposed to be
essential to all written constitutions, that a law repugnant to the constitution is
void; and that courts, as well as other departments, are bound by that
instrument




Since
the judges in this nation are sworn to uphold the Constitution and are bound by its
terms, any act or law found to be violative of the Constitution is unenforceable by the
Courts. The Courts thus have a powerful check on the other branches of the government as
they have the ability to stop their actions completely. Importantly, if the courts
determine that laws or acts violate the Constitution, the Courts decision can only be
reversed by amending the Constitution. There have been many attempts to amend the
Constitution to circumvent Court holdings, but they tend to fail
uniformly.

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