Judicial review is the doctrine in democratic theory under which legislative and executive action is subject to invalidation by the judiciary. Specific courts with judicial review power may annul the acts of the state when it finds them incompatible with a higher authority, such as the terms of a written
constitution. Judicial review is an example of the functioning of
separation of powers in a modern governmental system (where the judiciary is one of three
branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from country to country and state to state.
History
United States
In 1800 the
Federalists and their candidate, President
John Adams, lost the election to
Thomas Jefferson. Early in 1801 the lame-duck Federalist Congress enacted a controversial
Judiciary Act that created 58 new judgeships, including 42 justiceships of the peace, for Adams to appoint. Jefferson complained that the Federalists "have retired into the judiciary as a stronghold." On the night of March 3, 1801,
John Marshall, acting as secretary of state, affixed the official seal to the commissions for the justices of the peace. He did not, however, deliver the commissions. The next day, after Thomas Jefferson was inaugurated, he directed the new secretary of state,
James Madison, to withhold delivery of 17 of the 42 commissions, including that of
William Marbury. William Marbury sued for a
writ of mandamus to require Madison to hand over his commission.The decision in
Marbury's case, written by Chief Justice John Marshall (the very same John Marshall who affixed the seal to Marbury's commission) established and justified the power of judicial review. Marshall strained to reach his result. The plain words of Section 13 of the Judiciary Act indicate that Marbury went to the wrong court or invoked the wrong statute (or both), but Marshall proceeded as if the suit were authorized by Section 13 and then declared the statute unconstitutional on the grounds that it purported to expand the Court's original jurisdiction in violation of Article III. Marbury's suit was dismissed for lack of jurisdiction. Marshall's decision allowed the Court to brand Jefferson a violator of civil rights without issuing an order that the President could have ignored.
Notes and references
See also
