Asked in US ConstitutionUS GovernmentUS Supreme Court
What process allows the US Supreme Court to judge the constitutionality of a law?
February 06, 2018 5:33AM
The Supreme Court's ability to analyze laws in terms of their constitutionality is called "judicial review." If the Court decides a law is unconstitutional, the law will be nullified.
The Supreme Court, under Chief Justice John Marshall, set precedent for this interpretation in their ruling in the case of Marbury v. Madison, 5 US 137 (1803), when the Justices concluded Section 13 of the Judiciary Act of 1789 was unconstitutional because it conferred upon the Supreme Court powers not explicitly provided as part of the Court's original jurisdiction (this is arguable, considering Madison, as Secretary of State, could be considered a "consul").
While this powerful check on the legislature is not explicitly spelled out in the Constitution, Article III, Section 2 does specifically delegate to the Supreme Court:
"The judicial power shall extend to all cases in law and equity, arising under this Constitution..."
Article VI says:
"...This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land."
It is reasonable to consider that the only branch of the government qualified to ensure laws adhere to the Constitution (which is the meaning of "...and the laws of the United States which shall be made in pursuance thereof...") would be the Judicial branch, as outlined in Article III, Section 2.
For more information, see Related Questions, below.
that is an example of judicial review
The process whereby the Supreme Court can judge the constitutionality of a law is known as judicial review. Although this process is legally strictly limited to determining if a law, as written, is constitutional or not, in recent decades courts have gone on to "rewrite" laws through decisions from the bench. A recent decision is the Supreme Court weighing in on the Affordable Care Act whereby the court held that the law would be unconstitutional as a direct penalty. The court decided it was a tax, even though the text of the law explicitly states that the penalty is not a tax. This overreach is commonly called judicial activism.