Is the concept of judicial review mentioned in the constitution?

Answer 1

The Supreme Court is not explicitly given the power of judicial review. It is, however, an implied power. The power of judicial review was asserted by Chief Justice John Marshall in Marbury v. Madison, a case in which he declared a section of the Judiciary Act of 1789 unconstitutional. Previously, the Court had made decisions supporting acts of Congress; this was the first time it had acted against it.

That is not to say that the idea of judicial review did not exist before this case, or that it was not considered in the writing of the Constitution. It was debated during the Constitutional Convention, it just wasn't explicitlywritten. Even when Marshall's decision was made in the case of Marbury v. Madison, his claim to judicial review was not doubted or opposed.

Interestingly, Thomas Jefferson, who was president at the time, also claimed the right to judicial review. Andrew Jackson, a later president, also did. Their ideas did not, however, survive.

Answer 2

Answer

No. The Constitution prescribes "... one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Article III of the Constitution, listing the powers of the Judiciary, is far shorter than the extensive lists of "enumerated Powers" of the Congress in Article I, or of the Executive branch in Article II. The Constitution grants very limited powers to the Courts.

The concept of "judicial review" - that a Court has the power to overturn acts of the Legislature - was extremely controversial in 1803 when the Supreme Court unilaterally declared its power in the case of Marbury v. Madison.

Answer

Although the power of judicial review isn't explicitly stated in the Constitution, the authority 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.

The Constitution limits the action of all branches of government, not just the judiciary. The lack of specific instruction for which cases fall under the Court's appellate jurisdiction, as opposed to the specificity of which cases are under its original jurisdiction, tends to suggest the Founding Fathers intended to provide the Court an expanded scope of responsibility with regard to safeguarding the Constitution, not a more limited one.

The power of judicial review is also a byproduct of US Supreme Court case law, which is considered an "informal amendment process." Informal amendment simply refers to a standard and excepted constitutional interpretation in use under the American common law system. Despite the term, the informal amendment process isn't typically permanent and doesn't really change the constitution, only the meaning given to various clauses. This understanding changes over time.

Marbury v. Madison, 5 US 137 (1803) is considered the first case to fully explicate the right of judicial review. That power has been recognized (to varying degrees) by all three branches of the US government for more than 200 years.

Answer

Sort of; judicial review is not explicit in the text of the Constitution. However, judicial review is a concept that originates in English common law, with which the Founding Fathers were more than familiar, so it is reasonable to conclude that they expected the Supreme Court to practice the doctrine of judicial review to some extent, even without stating this explicitly. Moreover, five of the 13 original states included explicit provisions in their state constitutions for judicial review before 1785, so the concept was well established in American law even before the current Constitution was ratified.

For more information, see Related Questions, below.

Answer 3

No. The Constitution doesn't explicitly give any branch of government the right of judicial review; it is an implied power of the Judicial branch by virtue of their role in the United States' government.

Judicial review is the primary check the Supreme Court has on the power Congress; if Congress also had the right of judicial review, the the two powers would cancel each other out.

For more information, see Related Questions, below.

Answer 4

The Constitution provides very little instruction in Article III for how the Judicial Branch should function, except to state there shall be one Supreme Court and to establish jurisdiction over various types of federal cases. Many people infer from this that the Framers didn't intend to allow the courts to exercise judicial review; however, it seems more likely they expected them to operate as usual with the exception of explicitly shifting jurisdiction over certain types of cases from the States to the Federal government. This action was necessary because the government established under the Articles of Confederation lacked a federal court system.

If the Framers intended to curtail judicial review, an established practice adopted from English common law, they could have expressly prohibited it, as they did in Article I when they told Congress it was forbidden from passing ex post facto laws, bills of attainder, and certain forms of taxes, and as they did in Article III when they specified the federal courts lacked jurisdiction over impeachment trials (these are under the authority of the Senate).

Article III

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2. 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;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

Answer 5

Judicial review is not found in the United States Constitution. It's power is only inferred from its provisions and structures.

Answer 6

No. Judicial review was established by the Supreme Court decision in Marbury v. Madison

Answer 7

no it does not