Principle of judicial review and it’s role in the government

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            One of the fundamental principles guiding the existence of nations is the Checks and Balances. This is evident especially among democratic country. It is also considered as an essence of democracy. The three major departments are the Executive, Legislative, and Judiciary. Each has a unique functions and exercises discretion over distinct jurisdictions. Basically, the legislative department is in charge of making laws while the executive department executes them. On the other hand, the judicial department is in charge of interpreting the laws. All exist independent and co-equal to each other.

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            In a limited view, the judicial department draws its power from Art. III of the Constitution. The power is vested inherently in the Supreme Court but delegates such power to the courts in lower levels, like the circuit courts, Court of Appeals, among others. The power vested in the Supreme Court is called judicial power. However, through time and because of its function of reviewing and determining laws, it has been referred as judicial review.


            In the Constitution, Judicial review has no fixed or explicit definition. However, it came to evolve and rose in three separate historical events. The first was during the case of Dr. Bonham in 1610 wherein the Court of Common Pleas concluded that “any law passed by the Parliament is subordinate to the common law decisions made by trial and appellate court judges, and any statute that is contrary to common right and reason must be declared void.”[1]By virtue of this decision, the power of the courts being the guardian and interpreter of common laws has been acknowledged. In addition, the right of the courts to evaluate, approve, and invalidate laws passed by the lawmaking body has been recognized. Hence, as early as 1610, the power to Judicial Review already existed.

            Alexander Hamilton reiterated the principle of judicial review in his column in The Federalist papers.[2] According to Hamilton, the judiciary has the least power as compared to others. It may have right to judgement but do not have any force or will to the Constitution. However, through judicial review, the court may now have the power to expound the meaning of the Constitution.[3]

            The power of the Court to Judicial Review and the independence of the court was strongly established in the landmark case of Marbury v. Madison.[4] In this case, the judiciary was in the middle of opposing forces that obeying an order from one entity would weaken its foundation. However, through the wisdom of Justice Marshall, its role as protector of the Constitution was stressed. In the strong argument of Justice Marshall, the court has established its power to invalidate laws and acts of Congress and of the Executive repugnant to the Constitution.[5] In addition, the court emphasized that it has its necessity to interpret the law and decide which law operates in cases of conflicts. From there, the court’s judicial power has been finally recognized in the legal system. At present, the Court continues to exercise its power for judicial review.

            In several cases, the Supreme Court utilized its power to judicial review by invalidating Executive and Legislative Acts for being repugnant to the provisions of the Constitution. Another landmark case apply judicial review is the case of New York Times v. United States.[6] This case involves the Pentagon Papers which contains confidential study about the US’ activities in Vietnam during the war.[7] The confidential information was published by New York Times and later by Washington Post. President Nixon, on the other hand, retrained the two newspapers from further publishing the paper because he argued that it would threaten the national security. In resolving the case, the Supreme Court upheld the right to press and of free expression defences of New York Times. In addition, the Supreme Court found the defendant to have failed in establishing imminent and real threat to national security.[8] Thus, the administration’s prior restraint cannot be granted.

            It can be observed from this case that the Supreme Court played as role of not only as arbiter of the Constitution but of conflicting rights between groups or individual. From those landmark cases, the Supreme Court’s judicial power has been improving. From those improvements, the principle of checks and balances is being realized.

            With regard to federal government, the above stated cases have illustrated the Supreme Court’s capacity to decide cases that are federal in nature. Art. III of the Constitution laid down the issues that the Supreme Court can legally resolve. Sec. 2 specifically provides, in part;

“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.”[9]

             Basically, state courts have jurisdiction over cases involving within their premises. However, there are also instances where the Supreme Court can hear, try, and decide cases in the federal level. Aside from those enumerated in Art. III, the Supreme Court can exercise its judicial review where the issue involves question of law, abuse of discretion, interpretation of statute, and many others. Significantly, shaping of public policy has been exercise by the Supreme Court by virtue of its judicial review. In the recent case concerning the Second Amendment, the Supreme Court resolved the long time issue on the right to bear arms in the case of District of Columbia v. Heller.[10] In the said case, the Supreme Court resolved the case by concluding the right as an individual right. The court stressed that the right of the people to self- defense is not connected with the service in militia.[11] For almost 70 years, the interpretation that the right was only for those in the service of militia was finally vacated. Thus, the court judicial review has truly been established to apply to issues in federal level.


            In the smooth flow of governmental affairs, each department is tasked to fulfil their duties as mandated by the Constitution. The Judicial Department, being an arbiter of the Constitution should be armed with power to extend their understanding and interpretation of the laws where every decision is based. Although judicial review as a power has not been written in the law, the changes in history have established it. Through judicial review, the Supreme Court can now efficiently discharge its duty in settling disputes.


Article III US Constitution, Find Law for Legal Professionals, 2008, retrieved August 29, 2008, <htttp://>.

District of Columbia v. Heller, 554 U.S. ___ (2008).

English Law- Dr. Bonham’s Case, Law Library- American Law and Legal Information, 2008, retrieved August 29, 2008, <>.

New York Times v. United States, 403 U.S. 713 (1971).

William Marbury v. James Madison, 5 U.S. 137 (1803).

Wolfe, C, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-made Law, Rowman & Littlefield, New York, 1994.

[1] Available at
[2] C Wolfe, The Rise of Modern Judicial Review: From Constitutional interpretation to Judge-made Law, Rowman & Littlefield, New York, 1994, p. 4.
[3] Ibid.
[4] William Marbury v. James Madison, 5 U.S. 137 (1803).
[5] Ibid.
[6] New York Times v. United States, 403 U.S. 713 (1971).
[7] Ibid.
[8] Ibid.
[9] Available at
[10] District of Columbia v. Heller, 554 U.S. ___ (2008).
[11] Ibid.

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