Concept of Judicial Review Background : • How is the Court to be structured? • Colonial System • Constitution vague • Judiciary Act of 1789 Transfer of legal authority from states to Federal government • 11th Amendment weakens judiciary
MARBURY v. MADISON (1803) Facts of the Case/Decision Significance: • Marshall established the courts power to declare acts of Congress and the President unconstitutional if they exceed the powers granted by Constitution • The Supreme Court became the “umpire” of the Constitution • Chief Justice elevated to status comparable to President and Speaker of the House.
Judicial Self-Restraint • Judges have different “philosophies” regarding how they should use the latitude they have in interpreting ambiguous provisions of the Constitution. • Judicial Self-Restraint: • Defer to laws made by elected officials (Congress): In particular, judges should not substitute their political and personal preferences for those of elected officials. • Also stare decisis(“let the decision stand”) the importance of precedent
Judicial Activism • Judicial Activism: in general, all judges more or less endorse the norms of self-restraint but “activists” feel less bound by them. • The judiciary is co-equal to other branches, so judges should not be especially deferential. • Judges have special competence in interpreting laws and the Constitution. • Judges should be willing to substitute their constitutional judgments for those of elected officials, especially…. • Judges should be willing to overrule mistaken precedents and adapt their interpretations of the Constitution to changing times.
Judicial Self-Restraint vs. Activism Today these conflicting postures are sometimes characterized as • Strict construction / original intent: • “literal meaning” of the words in the Constitution • “intent of the framers” • vs. loose construction / evolving interpretation: • The Constitution is a flexible and evolving document whose operational meaning changes as society change This is NOT necessarily a “liberal” vs. “conservative” conflict