What allows the supreme court to declare a law passed by congress or the president as unconstitutional?

Answer 1

Answer

Judicial review is not explicitly mentioned in the Constitution, and is not directly promoted or prohibited.

Reasoning and Constitutional Support

for the Doctrine of Judicial Review

While not specifically mentioned in the Constitution, judicial review was standard practice in British common law, which is the foundation of the US judicial system. The practice had been followed in a few earlier US cases without resistance from Congress or the President, establishing a precedent for its use. Further, the Constitution didn't prohibit judicial review, which would have been a logical action to take if the Framers intended the Judicial Branch to depart from the status quo.

Some of the Founding Fathers, like Alexander Hamilton, believed the doctrine operated in the best interest of the people; others, like Thomas Jefferson, strongly opposed judicial review because he believed it violated the separation of powers. It's possible judicial review would never have become controversial if the Supreme Court hadn't exercised this power during Jefferson's presidency, and in a context that highlighted the power struggle between Adams' Federalist party and Jefferson's Democratic-Republicans. (For more background, see Marbury v. Madison in Related Questions, below.)

John Marshall's Constitutional Interpretation

Chief Justice John Marshall used the doctrine of judicial review to nullify a small portion (Section 13) of the Judiciary Act of 1789 in the Marbury v. Madison, (1803) case. In order to justify the Supreme Court's legal decision and lay a foundation for strengthening the role of the Judicial Branch, Marshall scrutinized the Constitution for supporting evidence. His conclusions are published in the opinion of the Court for the seminal case Marbury v. Madison, 5 US 137 (1803), which is (sort of) briefly summarized and excerpted here.

The authority for the doctrine of judicial review is implied in Article III, and in general, by virtue of the Supreme Court's role as head of the Judicial branch of government.

Article III, Section 1 begins:

"The judicial power of the United States, shall be vested in one Supreme Court..."

Article III, Section 2 of the Constitution states:

"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..." [emphasis mine]

This clause can be interpreted to mean the Judicial branch has the implied power to determine whether legislation is constitutionally sound, as part of its responsibility to uphold the Constitution. If the Legislative or Executive branches are allowed to act unilaterally, without any form of oversight, then there is no means of protecting the integrity of the Constitution. This responsibility would logically fall to those with an understanding of law, the judiciary, or more specifically, the Supreme Court.

Marshall observed that, unless the courts exercised judicial review, Congress would become omnipotent because they would be unable to judge their own legislation impartially. If Congress were able to pass laws without regard for constitutional principles, the Constitution would become meaningless.

"It is emphatically the 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 the rule. If two laws conflict with each other, the Court must decide on the operation of each.

"If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply."

His words refer to the Article VI Supremacy Clause, which states laws must comply with constitutional principles. If the courts are required to use the Constitution as their guide in applying laws, and the Constitution is superior to ordinary legislation, then the courts must uphold the Constitution over acts of Congress.

[Bear in mind, the Marbury case, itself, called upon the Court to make a judgment as to whether Marbury's commission should be issued based on procedures outlined in the Constitution. There was no law supporting Jefferson's refusal to deliver the paperwork, nor was there a law compelling him to do so.]

Marshall found additional reinforcement of his opinion in the language and structure of Article I. Here, he noted the Constitution was written in a manner that not only invited the Judicial Branch to scrutinize legislation, but described issues that to be settled by the courts. Chief Justice Marshall reasoned the authority and limits outlined in Article I indicated the Framers expected the judiciary to act as a check on Congress:

"It is declared that "no tax or duty shall be laid on articles exported from any State." Suppose a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the Constitution, and only see the law?

"The Constitution declares that "no bill of attainder or ex post facto law shall be passed."

"If, however, such a bill should be passed and a person should be prosecuted under it, must the Court condemn to death those victims whom the Constitution endeavors to preserve?

"No person,' says the Constitution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."

"Here, the language of the Constitution is addressed especially to the Courts. It prescribes, directly for them, a rule of evidence not to be departed from."

Established Precedent in the US

Although Marbury is the first case to fully explicate the right of judicial review, it is not the first time the Judicial Branch challenged an Act of Congress and found it unconstitutional. In 1792, the Circuit Courts declared a law related to military veterans unconstitutional, to which Congress responded by rewriting the law in accordance with the courts' opinion. Congress, the US Attorney General and the Secretary of War had all respected the decision without argument or indignation.

The Supreme Court had also exercised judicial review in Hylton v. United States, 3 US 171 (1796), to supportchallenged legislation, the Act of June 5, 1794 (repealed in 1796), that imposed a carriage tax protested as unconstitutional. In Hylton, the Court declared the carriage tax was not a direct tax in violation of Article I, Section 9, but a constitutionally allowable excise tax. Since Hylton upheld an act of Congress, it is often overlooked as an example of judicial review.

Similarly, a second case that Term, Ware v. Hylton, 3 US 199 (1796), held that the Treaty of Paris (1783) superseded an otherwise valid Virginia statute and used the Supremacy Clause to nullify the law.

Conclusion

The Constitution doesn't create a blueprint for construction of government so much as a framework upon which to build. Members of the Constitutional Convention argued at length over the founding principles they considered essential, detailed the branches' roles, and described their power and limitations to the extent they believed necessary to achieve their ends. They were undoubtedly aware they couldn't anticipate every issue that might arise in the country's operation.

Where the Constitution neither prescribes nor proscribes an activity related to the government's function, and where that vacuum needs to be filled in order to uphold the stated goals and principles, it is reasonable for the operating government to devise solutions to its problems. Judicial review provides an important check on the power Executive and Legislative Branches, discouraging them from straying too far into tyranny.

Answer 2

Judicial Review is an implied -- not enumerated -- power of the Judicial Branch, not just the Supreme Court. The Supreme Court is head of the Judicial Branch, however, and has final authority over constitutional questions.

Some people consider judicial review to be unconstitutional because it's not explicitly mentioned in the Constitution; however, the Framers deliberately excluded language prohibiting the use of implied powers that had been present in the Articles of Confederation.

Chief Justice John Marshall thoroughly explained the reason this power is legitimate and necessary in his opinion for Marbury v. Madison, (1801).

For more information, see Related Links, below.

Answer 3

As long as the majority of the court agrees that the law does, in fact, violate the US Constitution, they can declare it unconstitutional and strike it down.

Answer 4

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Answer 5

YES