NCJ Number
81037
Date Published
1981
Length
271 pages
Annotation
The authority and exercise of the U.S. Supreme Court's judicial review is critiqued.
Abstract
The Supreme Court's exercise of judicial review empowers it to judge and annul acts of the legislative and executive branches of the Federal and State governments on the basis of the Court's own interpretation of the U.S. Constitution, as well as to effectively construct new law out of its binding and generalized interpretations of the Constitution as applied to particular cases. The source of this authority for judicial review, however, is not to be found in the Constitution. The Constitution established three branches of government, each with the power to conduct its own functions without interference from another branch. The legislative branch is empowered to make laws which it deems to be within the parameters of constitutional mandates, and the executive branch enforces the law according to its understanding of it. The judicial branch is authorized to apply and interpret the law in particular cases brought within its jurisdicion. The Constitution does not give the Supreme Court power to judge the constitutionality of legislation constructed by the legislative branch. The legislative branch was intended to make its own judgment about the constitutionality of the law it creates. In Marbury v. Madison, the Supreme Court took upon itself the right and the power to determine the constitutionality of laws passed by Congress, in the absence of any express grant of such power in the Constitution. Further, the Court is empowered to render judgments only where existing law clearly applies to cases brought before it. Its application of general constitutional concepts which have not been spelled out in detail by the legislative branch to specific cases to create precedents usurps the prerogative of the legislative branch. The power of judicial review has in effect given a nonelected body of nine persons ultimate power over the people's elected body of representatives -- a circumstance never intended by a Constitution oriented toward the placing of the power of governing in the hands of those elected by the people. Extensive footnotes are provided for each chapter. (Publisher abstract modified)