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How was the power of judicial review determined since it was not explicitly granted in the Constitution?
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.
For more information, see Related Questions, below.
What else can I help you with?
Which article of the constitution grants the Supreme Court the power of judicial review?
The power of judicial review is granted to the Supreme Court by Article III of the United States Constitution.
What are the powers called that are specifically granted to the national government by the constitution?
Enumerated powers are the powers granted to the Federal Government by the U.S. Constitution. The clause explicitly enumerates all of the powers the Federal Government should have, and their powers are limited to those listed in the clause.
What are enumerated powers?
Enumerated powers are the powers explicitly granted to congress by the Constitution. powers that are specifically mentioned, or listed, in the Constitution
Can judicial review not be granted?
Judicial review is the power of the judiciary branch to invalidate laws made by the legislative and/or executive branch. It's generally explicitly granted by a provision in the country's constitution. It's possible to write a constitution which does not grant the judiciary branch this power, but doing so eliminates part of the "checks and balances" that are common in constitutional governments. If you mean discretionary review (review of the results of a case in a lower court), at least in the US the Supreme Court is not required to hear all appeals; those wishing to appeal to the Court submit a petition, and a certain number of Justices (at least four) must agree that the case merits a hearing. Only about 1% of the petitions are actually granted certiorari.
Chief justice john marshall believed in judicial review wich is?
A judicial review is a judicial body empowered to annul lower courts rulings if they conflict with the constitution. A judicial review, for instance, might rule that a state can not decree that everyone with blue eyes be imprisoned because this conflicts with federally granted rights.
Those who favor a strict construction of the constitution believe what?
the powers of the federal government are explicitly granted by the constitution
Those who favor a strict construction of the Constitution believe .?
novanet- the powers of the federal government are explicitly granted by the constitution
What Enumerated powers?
Enumerated powers are the powers explicitly granted to congress by the Constitution. powers that are specifically mentioned, or listed, in the Constitution
Which article of the constitution grants the Supreme Court the power of judicial review?
The power of judicial review is granted to the Supreme Court by Article III of the United States Constitution.
What are the powers that congress has that are not stated explicitly in the US Constitution?
These powers are referred to as implied powers, powers that are not explicitly granted to Congress in the U.S. Constitution. The opposite would be expressed powers.
What power does article 3 give to the third branch of government?
The Judicial Branch was established by Article III, and gave the branch the authority to decide cases and controversies. Strangely enough, the greatest power that is exercised by the courts, judicial review, the power to declare laws unconstitutional, is not explicitly granted by the Constitution.
The power granted to the U S government that the Constitution mentions directly and explicitly?
Enumerated powers. (Study Island)
What are the powers called that are specifically granted to the national government by the constitution?
Enumerated powers are the powers granted to the Federal Government by the U.S. Constitution. The clause explicitly enumerates all of the powers the Federal Government should have, and their powers are limited to those listed in the clause.
What are enumerated powers?
Enumerated powers are the powers explicitly granted to congress by the Constitution. powers that are specifically mentioned, or listed, in the Constitution
Who holds powers not specifically granted to the Federal government?
There is absolutely no doubt or debatable point on this question except to those that believe the US Constitution is a "living document and not written law". The Tenth Amendment explicitly states the Constitution's principle of federalism by providing that powers not granted to the federal government nor prohibited to the state by the Constitution of the United States are reserved to the states or the people.
Where in the constitution does it talk about education?
The United States Constitution does not explicitly mention education, as education is primarily a responsibility of the individual states. However, the 10th Amendment reserves powers not granted to the federal government to the states, which includes education.
Can judicial review not be granted?
Judicial review is the power of the judiciary branch to invalidate laws made by the legislative and/or executive branch. It's generally explicitly granted by a provision in the country's constitution. It's possible to write a constitution which does not grant the judiciary branch this power, but doing so eliminates part of the "checks and balances" that are common in constitutional governments. If you mean discretionary review (review of the results of a case in a lower court), at least in the US the Supreme Court is not required to hear all appeals; those wishing to appeal to the Court submit a petition, and a certain number of Justices (at least four) must agree that the case merits a hearing. Only about 1% of the petitions are actually granted certiorari.
