13 dets. Why Is Judicial Review Legal
In some cases, state courts have argued that their judgments are final and cannot be reviewed by the Supreme Court. They argued that the Constitution does not give the Supreme Court the power to review state court decisions. They argued that the Justice Act of 1789, which provided that the Supreme Court could hear certain appeals from state courts, was unconstitutional. In fact, these state courts have argued that the principle of judicial review does not extend to allow federal review of state court decisions. This would have left states free to adopt their own interpretations of the constitution. But it is not only with regard to constitutional violations that judicial independence can be an essential safeguard against the effects of occasional bad mood in society. These sometimes go no further than the violation of the private rights of some citizens by unjust and biased laws. Again, the firmness of the judiciary is of great importance in mitigating the severity and limitation of the application of these laws. Not only does it serve to mitigate the immediate calamity of those that may have been adopted, but it also serves as a check for the legislature by adopting it; who recognize that the obstacles to the success of an unjust intention are to be expected from the courts, and are somehow constrained by the grounds of injustice that they meditate to relativize their attempts.
It is a circumstance that is destined to have more influence on the character of our governments than few people realize. Another reason why judicial review must be understood in the context of the development of two different legal systems (civil law and common law) and two theories of democracy (legislative primacy and separation of powers) is that some countries with common law systems do not have judicial review of primary law. Although a common law system exists in the United Kingdom, the country still has a strong attachment to the idea of legislative supremacy; Therefore, judges in the United Kingdom do not have the power to abolish primary law. However, when the UK became a member of the European Union, there was a tension between its tendency towards legislative dominance and the EU`s legal system, which explicitly gives the European Union`s Court of Justice the power to review the courts. Differences in the organization of democratic societies have led to different views on judicial review, with common law societies and those emphasizing a separation of powers being most likely to avail themselves of judicial review. [ref. needed] Nevertheless, many countries whose legal systems are based on the idea of legislative primacy have progressively adopted or expanded the scope of judicial review, including countries with civil and common law traditions. This conclusion in no way implies the superiority of the judiciary over the legislative power. It only presupposes that the power of the people is superior to both; and that if the will of the legislature, declared in its statutes, is contrary to the will of the people proclaimed in the Constitution, judges should be governed by the Constitution and not by the former. They should regulate their decisions by basic laws and not by non-fundamental ones.
It was in Marbury that the Supreme Court assumed a role of oversight of government actions. [59] Having exercised its power of judicial review in Marbury, the Court avoided passing federal legislation for the next fifty years. The court won`t do so again until Dred Scott v. Sandford, 60 USA (19 wie.) 393 (1857). [60] Marshall explained that the provisions of the Constitution itself empower the courts to “review” the Constitution, that is, to interpret and apply it, and that they have a duty to refuse to apply unconstitutional laws. In particular, article III provides that the federal judiciary “shall be extended to all matters arising from the Constitution”. Article VI requires judges to take an oath to “support this Constitution.” Article VI also provides that only laws “promulgated in pursuance of the Constitution” are the law of the land. Marshall concluded, “Thus, the particular wording of the United States Constitution confirms and reinforces the principle, which should be essential to all written constitutions, that a law that violates the Constitution is void and that courts and other departments are bound by that instrument.” [56] National Juris University, the graduate department of National Paralegal College, offers the following programs: Second, the idea of separation of powers is another theory about how the government of a democratic society should be organized. In contrast to legislative supremacy, the idea of separation of powers was first introduced by Montesquieu; [1] It was subsequently established in the United States by the Supreme Court decision in Marbury v. Madison under the court of John Marshall. The separation of powers is based on the idea that no one branch of government should be able to exercise power over another without due process; Each branch of government should control the powers of the other branches of government, thereby creating a regulatory balance between all branches of government. The key to this idea lies in checks and balances.
In the United States, judicial review is considered an important judicial review of the powers of the other two branches of government. These courts have argued that, since the constitution of their State is the fundamental law of the State, they must apply the Constitution of the State and not an Act of the Legislature incompatible with the Constitution of the State. [10] These state court cases, which involved judicial review, were reported in the press and gave rise to public debate and commentary. [11] Notable state cases involving judicial review include Commonwealth v.