Judicial Review Essay

By creating a Constitution, it is assumed that the people are going to agree to it as the law of the land. The Supreme Court is responsible for upholding the Constitution by interpreting the laws for the benefit of the people. The justices would be violating their oath if they were to oblige this obligation. If the Constitution were not the law of the land, why would it exist? This is the justification for judicial review, or the right of the court to declare legislative or executive unconstitutional. The Constitution states in article III, section 2 that, “The judicial power shall extend to all cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.”

Madison, the Supreme Court found that it did not have jurisdiction over the case and therefore could not issue a writ of mandamus. This is the first instance of judicial review by the Supreme Court. Regarding judicial review, Chief Justice John Marshall wrote in his opinion that, “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." (Shafritz and Weinberg 364). He reasoned that judicial review is needed in order to preserve the Constitution as the supreme law of the land over any other legislative act. He believed that his branch has the right to check the other two branches to make sure that all action that was taking place was constitutional because the legislative branch only has the authority given to it by the Constitution and cannot pass a law that is unconstitutional. Without judicial review, the legislative and executive branches would be able to act without boundaries and therefore, the Constitution would not be upheld. Thus, the Judicial Branch grew stronger with a right to disregard those issues that were

However, Gibson thought that although this is true to an extent, the power of judicial review is violating the own rules set forth for the judicial branch by the Constitution. Gibson states, “But it has been said to be emphatically the business of the judiciary, o ascertain and pronounce what the law is and that this necessarily involves a consideration of the Constitution. It does so: but how far?” Although the Constitution grants the courts specific powers, Gibson makes his point by saying that it does not specify the extent of those