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Essay: Judicial review

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  • Published: 19 September 2015*
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The judicial system is a very complex and elaborate one in any part of the world, even more in a country like United States. Because of its global importance, United States, in many aspects, is seen like an example or point of reference.
The American system of checks and balances, is a system in which the power is divided between the three branches: the legislative, the executive and the judicial, this last mentioned being the subject to review in this paper. The purpose of this paper is to present the importance of judicial review in the American legal system and the bases of this system on the U.S. Constitution.
The judicial branch of United States is represented by the U. S. Supreme Court and was created and enforced through Article III of the Constitution: ‘The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.’ The Supreme Court, as its name says, has the supreme or final rule over the constitutionality of laws. This judicial power arises from its capacity and authority to decide cases brought before it, clearly established in Article III of the Constitution, and is enforce through the doctrine of judicial review. ‘The function of doctrine is both to implement the objectives attributed by theory to the Constitution and to offer principled grounds of justification for particular decisions.’ This doctrine involves the interpretation of the law and is limiting the power of the other two branches by putting under revision their actions to establish their concordance with the Constitution. The judicial review is not directly mentioned in the Constitution and even though it probably had already been used, it was established as a rule for the fist time in 1803, through the case of Marbury v. Madison.
The Marbury case brings into discussion three important questions upon Chief Justice Marshall to decide: firstly, if Marbury has a right to the commission he demands ? Secondly, if he has a right, and that right is been violated, do the laws of the U.S. afford him a remedy? And thirdly, if they do afford him a remedy, can the Supreme Court issue a writ of mandamus in this case? For the first two issues the court rules in favour of Marbury, but the last one representing the actual controversy of the case, is overruled. This last question brings into discussion the problem of jurisdiction which can be ‘either original or appellate’ . Based on the Judiciary Act of 1789, the Supreme Court is given original jurisdiction to issue writs. But this particular case finds it in conflict with the Constitution and the court dismisses Marbury’s petition for his commission. The ruling upon this case is the origin of judicial review in the American legal system, and also established the power of federal courts to void acts of Congress, which are not in accordance with the Constitution. The arguments for this decision, are clearly addressed in Chief Marshall words on this case:
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each’So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty’ If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they may both apply.
1.2 General issues concerning the constitutionality of laws
The courts can exercise their power to rule only in actual controversies that are brought before them and challenged upon their constitutionality, not hypothetical questions. This power relies on three main ideas:
a) the Constitution being the supreme law of the land
b) the acts contrary to the Constitution are null and void
c) the judges are responsible for determining if acts violate or agree with the Constitution.
The term of law of the land was explained by Daniel Webster in his oral argument in the Dartmouth College case:
[Law] ‘is a rule; not a transient sudden order . . . to or concerning a particular person; but something permanent, uniform and universal. . . .’
By the law of the land, is most clearly intended, the general law; a law, which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land. If this were so, . . .decrees and forfeitures, in all possible forms, would be the law of the land. Such a strange construction would render constitutional provisions, of the highest importance, completely inoperative and void. . . . There would be no general permanent law for courts to administer, or for men to live under. The administration of justice would be an empty form, an idle ceremony.
The United States Legal System is based on the Constitutional law, which relies on the Constitution as the supreme law. With this subject in mind, is correctly to assume that being subjected to interpretation, the Constitution also may imply the grounds for further laws, more exactly what can or can not be ruled as a law. But the courts can verify their constitutionality only if someone challenges it and brings it before them.
In deciding a constitutional issue, there were identified six forms of constitutional argument: historical, textual, structural, doctrinal, ethical and prudential.
The historical argument is largely associated with the theory of original intent or original understanding, under which constitutional and legal interpretation is limited to attempting to discern the original meaning of the words being construed as that meaning is revealed in the intentions of those who created the law or the constitutional provision in question. The textual argument, closely associated in many ways to the doctrine of original intent, concerns whether the judiciary or another is bound by the text of the Constitution and the intentions revealed by that language, or whether it may go beyond the four corners of the constitutional document to ascertain the meaning. Using a structural argument, one seeks to infer structural rules from the relationships that the Constitution mandates. Doctrinal arguments proceed from the application of precedents. Prudential arguments seek to balance the costs and benefits of a particular rule. Ethical arguments derive rules from those moral commitments of the American ethos that are reflected in the Constitution.
These aspects of the judicial review can be applied on a variety of rights and liberties and further on, will be followed in the analysis on the right to life.

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