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What is judicial review and how is it used?


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April 01, 2017 2:45PM

Judicial review is the power of the courts to review laws, treaties, policies or executive orders relevant to cases before the court and nullify (overturn) those that are found unconstitutional.

The Marbury v. Madison decision and provides the Supreme Court with the power to interpret the Constitution.

Judicial Review is not an American invention, but a standard part of British common law that became part of the legal process in the United States. The first recorded use under the US Constitution was in 1792, when the circuit courts found an act of Congress related to military veterans unconstitutional. Congress rewrote the law, without protest, in 1793.

The US Supreme Court first exercised judicial review 1796, in the case of Hylton v. United States, although the rationale for using it had been laid in Federalist No. 78. Hylton v. United States was the first instance in which the Supreme Court evaluated the constitutionality of a federal law. In Hylton, the legislation, a carriage tax, was upheld. In a later case that year, Ware v. Hylton, the Ellsworth Court determined The Treaty of Paris took precedence over an otherwise constitutional state law and nullified the law.

The US Supreme Court case most often credited with affirming the doctrine of judicial review is Marbury v Madison, (1803) in which Chief Justice John Marshall declared Section 13 of the Judiciary Act of 1789 unconstitutional. This was the first time the Supreme Court overturned federal legislation. It greatly strengthened the power of the judicial branch, which had thus far been weaker than the other two.

Judicial review in the United States also refers to the power of the Court to review the actions of public sector bodies in terms of their lawfulness, or to review the constitutionality of a statute or treaty, or to review an administrative regulation or executive order for consistency with either a statute, a treaty, or the Constitution itself.

Judicial review is part of the United States' system of checks and balances on government. The Supreme Court has the power to review acts of the Legislative (Congress) and Executive (Presidential) branches to ensure they don't become too powerful or abrogate the Constitutional rights of the country's citizens.

Examples of Supreme Court Cases Involving Judicial Review

Hylton v. United States, 3 US 171 (1796)

Ware v. Hylton, 3 US 199 (1796)

Marbury v. Madison, 5 US (Cranch 1) 137 (1803)

Dred Scott. v. Sanford, 60 US 393 (1857)

West Virginia v. Barnette, 319 US 624 (1943)

Brown v. Board of Education, 347 US 483 (1954)

Baker v. Carr, 369 US 186 (1962)

Roe v. Wade, 410 US 113 (1973)

United States v. Nixon, 418 US 683 (1974)

interpret executive actions, legislation, and lower court decisions. (GradPoint)