In USA like other countries the
supreme court decide of different cases. But the Supreme Court of USA has also
another power and authority which is very important and unique is called "
Judicial Review ".
“Judicial Review " is the principle and authority which give the Supreme Court
of USA the power of reject or abrogate any law which is made by Congress or
states. According to this power Supreme Court of USA reject or abrogate any law
which is not suit or conform to the constitution of USA or apposite the
constitution of USA or violate the Constitution .
The U.S. Constitution does not mention judicial review. This power, however, was
used before 1787 by courts in several of the American states to overturn laws
conflicting with state constitutions. In 1789 the Congress of the United States
passed the Judiciary Act, which gave federal courts the power of judicial review
over acts of state government. This power was used for the first time by the
U.S. Supreme Court in Hilton v. Virginia (1796).
In 1803, the power of judicial review was used for the first time by the U.S.
Supreme Court to declare an act of Congress unconstitutional (Mar bury v.
Madison).As we know that the constitution of USA is superior law of the country.
In his opinion for the Court in Mar bury v. Madison, Chief Justice John Marshall
explained and justified the exercise of judicial review to strike down an
unconstitutional act of Congress or states. He wrote, "Certainly all those who
have framed written constitutions contemplate them as forming the fundamental
and paramount law of the nation, and consequently the theory of every such
government must be that an act of the legislature repugnant to the Constitution
is void. This theory is consequently to be considered, by this court as one of
the fundamental principles of our society" .
Merits and maturities (elegance) and Demerits and immaturities.
The Power of Judicial Review of Supreme court has different views and thoughts
of different peoples. It has its own merits, significent, excellences and
qualities as well as defects, demerits, immaturities and raw nesses. Some people
like it and some dislike this theory. I am trying to state its merits and
demerits briefly with the help of some main points.
Merits and maturities:
People and Philosopher who like and support “The Power of Judicial Review of
Supreme court" praise it and describe their arguments about it. These are their
main arguments:
1 .Protection and safety of constitution:
The judicial review protects and cares the constitution of USA. The constitution
of USA is superior law of the country. Supreme Court rejects the law of congress
or states which violate the constitution and not suit the country. So it
protects the constitution of USA. As Lord Brice said “Supreme Court is an alive
voice of constitution ".
2 . Protection and safety of democracy:
The Power of Judicial Review of Supreme court protects and save democracy. The
Supreme Court rejects the law which is against the constitution of USA and in
constitution there is safety of democracy.
3 . Check and balance:
The protectors and supporters say that Judicial Review create check and balance
in departments and governments institutions as administration and legislative
institutions. Supreme Court prevents and stops the institutions to make laws of
their free will or consent.
4 . Restriction and prevention of dictatorship:
The Power of judicial review enables the Supreme Court to restrict the
dictatorship of any person, institution or state. It rejects the law of congress
or states which violate or opposite the constitution of USA.
5 . Protection and safety of human rights:
The protectors and supporters say that the power of judicial review protects and
guard the human rights. In the constitution of USA, these human rights are
mentioned. If any law goes apposite or violates these rights, Supreme Court
rejects it with the help of power of judicial review because it is also against
or violates the constitution auto-matically.
6 . Strength of Federal Gove:
There is another quality and perfection which is described by the protector of
judicial review is that power of judicial review can strengthen and powerful the
federal government. It rejects the law which is against the federal govt.
7 . Enhancement and enlargement of dignity and honor of USA:
The protectors and supporters of power of judicial review say that this power of
Supreme Court enhancement and enlargement of honor and dignity of USA in the
world.
8. Protection and safety of National and Collective interests:
Protection and safety of National and Collective interests is also very
important point described by the supporters of judicial review. Supreme Court
rejects the law which is against any national or collective interest because the
national interests are very important, basic and major thing in the countries.
9 . Care about opinion of public or common people:
The protectors and supporters of power of judicial review say that another
quality of this power is that it does not harmful and injurious to public
opinion but it care and protect the opinion of public and common people. Those
who say that it is not good for public right, they are wrong because Supreme
Court never reject the law which is beneficial for public and nation. It
prevents or rejects only those laws which are harmful for national and public
interests.
10 . Supremacy of Supreme Court:
As we know that justice is very important for any society or country. Supreme
Court is the main source of justice in country. The country in which judicial
setup is strong and powerful can get high position and dignity among the
countries. So, this power give supremacy to supreme court which is also good for
public as well as the country.
11. Principle of judicial care:
Initially (in beginning) Supreme Court rejects many laws without any main
reasons but after few years Supreme Court made a principle for itself which is
called “Principle of judicial care ". After this principle, Supreme Court only
reject those law which is actually violate or apposite the constitution of USA
or national interests.
These are the main arguments and points which are given by supporter of judicial
review. In USA, this power of judicial review is not rejected because of these
qualities. We cannot find any opponent of this authority of Supreme Court in USA
in these days vary easily.
Demerits and immaturities.
Some people do not like the judicial review and Militate and oppose the Supreme
Court’s power of judicial review. They describe some demerits and abuses of
judicial review. I state some of their arguments briefly in form of main points.
1. Not mentioned:
As we know that it is not mentioned in the constitution of USA. Therefore, the
opponents of judicial review say that it is not mentioned in constitution so it
is not acceptable and practicable. It is made by some judges on their own free
will and consent.
2. Undemocratic:
Opponents of judicial review say that it is an undemocratic system because a law
which is made by many members of congress or states and these members are also
selected by the whole country or state of USA is rejected and terminated by only
5 or 7 judges of Supreme Court of USA. It is an undemocratic and unpractical
system and power of Supreme Court.
3. Conservativeness (olden):
There is another demerit or abuse of judicial review is described by opponents
of this system is that it is an olden or antiquated system because the judges
are appointed for their whole life and they do not change their decisions which
they announced earlier despite of fault in decision or imperfection.
4. Hurdle and obstacle in the way of progress:
Opponents of judicial review system say that it create hurdle and obstacle in
the way of progress of the country. Congress or states pass a law for progress
and prosperity of the country and countrymen but Supreme Court reject the law
because of it is not according the constitution or violates the constitution of
USA. So it is necessary for the members of congress and states that they should
have constitution in their mind not personal purposes or motives at the time
forming law.
5. Dictatorship of judges:
There is another demerit of this system described by the opponents of judicial
review is that it create dictatorship in the mind of judges. They catch on and
comprehend themselves superior of all people because of power of judicial
review.
6. Personal rancor or enmity:
Some time judges reject the law only because of personal rancor or enmity. They
have enmity or rancor of some members of congress or states so they reject the
law which passed by them. It is also an argument of the opponents of this
system.
7. Superior house of USA:
The opponents of judicial review system say that because of this power Supreme
Court has become the third house in USA and this is superior to other two actual
houses senate and House of Representatives. Supreme Court has the power of
reject or terminates the law of Congress as well as states of USA.
8. Against national interests:
There is another argument which is described by the opponents of judicial review
system is that it is not useful and profitable for the country because with the
help of this power Supreme Court reject any law. The selected members are not
against national interests and they do not pass any law which is against
national interests. But Supreme Court reject the law only because of it is not
according to the constitution. They do not keep in mind national interests.
9. Opposite the theory of separation of powers:
As we know that there is another theory which is used in USA is separation of
powers. It means that three main institutions Judicatory, Administrator and
legislature not to interrupted in their works. But the power of judicial review
give the authority for interrupted the works and authorities of both other
institutions.
10. Rancor and Enmity between institutions:
People who oppose judicial review system argue that this power of Supreme Court
create rancor and enmity between Judicatory and legislature. If congress or
state’s legislative pass a law which is rejected by Supreme Court then conflict
or rancor is natural thing to come in the mind of both parties.
Conclusion:
There is nothing in the world which is bad or good for itself but this is its
uses which make him bad or good. This review system also has same situation. If
Supreme Court use it only for country then it is very good but if Supreme Court
uses it and keeps their own interests in mind, it is worse for country as well
as countrymen.
But we know that after principle of judicial care, Supreme Court never use it
against national interests and judges keeps national interests, safety, progress
and dignity in their mind instead of their own interests or conflicts.
So we can say it is very useful and beneficial for the country of USA