A Brief Introduction on Judicial Review in the United States Essay

1948 Words Sep 11th, 2011 8 Pages
A Brief Introduction on Judicial Review in the United States
Part I: A Brief Introduction on Judicial Review
Judicial review is the doctrine in democratic theory under which legislative and executive actions are subject to review, and possible invalidation, by the judiciary. Specific courts with judicial review power must 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
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The highest state court to decide such issues is the state supreme court.

While judicial review of state laws is clearly outlined in the supremacy clause, the Framers of the U.S. Constitution did not resolve the question of whether the federal courts should have this power over congressional and executive acts. During the early years of the Republic, the Supreme Court upheld congressional acts, which implied the power of judicial review. But the key question was whether the Court had the power to strike down an act of Congress.

The Supreme Court’s use of substantive due process brought charges of “judicial activism,” which means that in determining whether laws would meet constitutional muster, the Court was accused of acting more as a legislative body than as a judicial body. Justice OLIVER WENDELL HOLMES JR., in his famous dissenting opinion in Lochner, argued for “judicial restraint,” cautioning the Court that it was usurping the function of the legislature.

Administrative review & Constitutional review

The procedure for judicial review of federal administrative regulation in the United States is set forth by the Administrative Procedure Act although the courts have ruled such as in Bivens v. Six Unknown Named Agents[3] that a person may bring a case on the grounds of an implied cause of action when no statutory procedure exists.

The power to strike down

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