Is There Judicial Review in the Circuit Court
The Constitutional Basis for Judicial Review
Recently, Lino Graglia published a review of Akhil Amar's new book that made some claims most the ground for judicial review in the Constitution. Lino wrote:
Ramble police is the production of judicial review, the power of judges to invalidate policy choices made by other officials of regime on the footing that they are prohibited by the Constitution. Although the ability obviously creates the danger of making the judiciary — more specifically, the Supreme Court — superior to the legislature and the ultimate lawgiver, information technology is not explicably provided for in the Constitution. [MR note: does Graglia hateful explicitly or explicably?] It was established and dedicated by Chief Justice John Marshall in the famous instance of Marbury v. Madison, withal, on the ground that it is inherent in a written constitution. This was not right in that other nations had and have written constitutions without judicial review. Limiting judicial review to enforcement of a written Constitution does, however, serve the purpose of making it a tool of constitutionalism rather than simply a transference of policymaking power to judges.
Lino's claim is non entirely clear, only it can exist interpreted as asserting that judicial review is not really in the Constitution. While Lino may or may not mean this, this claim about the lack of basis for judicial review used to exist very mutual. Information technology obviously supports nonoriginalism. If the power of judicial review is just fabricated up, so one might argue that there tin exist little objection to judges exercising that power past making things upwards as well.
But judicial review is non merely made upward. In contempo years, scholars have argued persuasively that the Framers expected judicial review of the Constitution. But, even more importantly, judicial review has a strong ground in the constitutional text. While I cannot go review all of the arguments, I will endeavour to hit the loftier points.
Offset, the Supremacy Clause expressly states that a form of judicial review exists:
This Constitution, and the laws of the United States which shall exist made in pursuance thereof; and all treaties made, or which shall be made, under the authorization of the United States, shall be the supreme constabulary of the state; and the judges in every land shall be bound thereby, anything in the Constitution or laws of any Country to the contrary nevertheless.
Conspicuously, this is stating that state court judges must apply the Constitution rather than state statutes. Thus, Graglia's apparent claim that judicial review is not expressly in the Constitution is mistaken as to judicial review of state laws, and Graglia's essay clearly indicates that he has such judicial review of state laws in mind.
Just the ramble 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 also have a role in determining that a statute conflicted with the constitution (as opposed to the alternative possibility that the Congress would have the exclusive ability to make that determination). In the case of state statutes, the Constitution itself recognized that state courts would brand the determination that the country statute conflicted with the Constitution (rather than land legislatures making the determination). So the same dominion would brand sense every bit to federal statutes. In improver, the Constitution proclaims itself law, which also suggests that judges should interpret information technology equally they interpret other laws. Further, the Constitution provides that "This Constitution, and the laws of the United states of america which shall be made in pursuance thereof . . . shall be the supreme constabulary of the land." That suggests that only federal statutes consistent with the Constitution are supreme police force of the state. This last provision is open to other interpretations, but significantly many people at the time of the framing interpreted it in that way. Run into footnote 76 of this paper.
Source: https://lawliberty.org/the-constitutional-basis-for-judicial-review/