The practice of judicial review exists almost as long as the American Constitution itself. The arguments regarding it have been raging since the 19th century and still remain unresolved.
The judicial review is the power of the Supreme Court to examine a piece of legislation and rule out whether it is Constitutional or not. That power was first exercised in 1803 in the Marbury v. Madison case. Since then, the Supreme Court has held 176 acts of the US Congress unconstitutional. The major point of disagreement regarding the power of judicial review is that it allows judges to affect the decisions of the legislative branch of power. Hamilton considered that a violation of the Constitution since he thought that the Congress has the power to decide on its own whether a certain provision is constitutional or not (Hamilton, 1788). Thomas Jefferson supported that viewpoint: “to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so” (Jefferson, 1859). The concept of the Separation of Powers, which is one of the cornerstones of the Constitution, dictates that no branch of the government has the right to take on the responsibilities or powers of the other branch. The concept of the judicial review undermines that principle by giving the judicial branch power to directly affect the legislative decisions. However, that power is balanced by the fact that the Supreme Court’s jurisdiction is defined by the Congress. That means that some legislative and executive actions can be made unreviewable. Another concept, limiting the power of the Court is the self-imposed judicial restraint meaning that the review can only happen when it is strictly necessary. The exact rules of the judicial restraint were outlined by Justice Brandies in the Ashwander v. Tennessee case in 1936 and state that there must be a defined set of facts, a victim and a defined conflict of interests (United States Supreme Court, 1936).
Overall, the system of the judicial review seems like a valid counterbalance to the power of the Congress. While the legislative branch of power is supposed to follow the principles of the Constitution on its own, there is always a risk that a group of Congressmen can conspire to violate them for personal gain. Even though the Congress is controlled by the elections, the population of the country has little means to prevent transgressions by the representatives already in power. The system of the judicial reviews puts an additional hurdle in the way of unconstitutional decisions. The judges can overstep their boundaries, but it seems there is no way to prevent all the possibilities of abuse. And the review system is balanced out by the principles of the judicial restraint and the ability of the Congress to make certain decisions immune to the review.
The judicial review system is a Catch 22. It violates the powers of the Congress, seemingly giving the judicial system full control of the legislative branch of the government. And at the same time, if there is no judicial review, the legislative branch can make any laws they deem necessary, granting them too much influence over both the judicial and the executive branches. One way or another, the balance of powers is tilted. However, the judicial review system was maintained for over 200 years. It has been refined and balanced out by various acts and regulations. It seems that the system is way too important for the balance of powers in the government, and its removal might lead to a huge shift in the rights and responsibilities of all of the government institutions.
Hamilton, A. (1788)The Federalist No. 78 The Judiciary Department. Independent Journal.
Jefferson, T. (1859). Letter to William Jarvis (1820). In Washington, H.A. (Ed.), The Writings of Thomas Jefferson (pp. 177-181). New York, NY: Derby & Jackson.
United States Supreme Court. (1936). Ashwander v. Tennessee Valley Authority. Web.