The Power of Judicial - Essay Example

The Power of Judicial Introduction The government of the United States of America is predicated on the separation of power among its three co-equal branches of government, which are the executive (president), legislative (Congress) and the judiciary (Supreme Court and all its lower courts). The main objective of this separation was to prevent any one person holding all the powers of government which can lead to abuse of power or a situation in which a potential dictator can amass the power of government. The Founding Fathers intended this separation because they had seen the abuses under a former despotic monarch in handling the American colonies before America won its independence. This paper tackles the power of judicial review presumably granted to the U.S. Supreme Court to see all laws passed in the nation complied with the U.S. Constitution based on its own interpretation. This power serves as a check-and-balance to prevent one branch of government from abusing its powers either deliberately or not, and to declare some laws as illegal or unconstitutional. Discussion Judicial review refers to the authority of a court (the Supreme Court or its lower courts) to examine either an executive or legislative act whether it is lawful (constitutional) or not; if not, then the court declares such act as illegal and invalidates the said act as having no legal effect. It is a well-established legal doctrine by practice but it has not been adequately settled as an issue. There are two prevailing opinions on the supposed power of judicial review by the Supreme Court. The first view is that no such explicit powers had been granted or contemplated by the Founding Fathers since nowhere in the Constitution was such powers of judicial review clearly stipulated. The second and opposing view is that the Founding Fathers had intended to grant such powers of review but may have inadvertently omitted it by oversight or by mistake only. Opponents of judicial review cite Section II, Article III of the Constitution as not saying a power to review had been granted since what this section contains is merely a mention of judicial power (but not judicial review powers) while its advocates cite legal precedence in this regard. It had been decided when this issue came up in Marbury v. Madison (1803) when the U.S. Supreme Court for the very first time declared an act of Congress as unconstitutional. This act is declared illegal, hence this implies the power of judicial review by the Supreme Court. However, advocates of judicial review most often cite the article by Alexander Hamilton in the Federalist (Paper No. 78) as the ultimate guide whether the Founding Fathers intended for a judicial review. This particular article by Hamilton needs to be examined for its spirit (intent) in this regard. This specific line in the Federalist #78 runs, “whoever attentively considers the different departments . . . in which they are separated from each other . . . the judiciary, from the nature of its functions (Hamilton, 1788, para. 7) implies a judicial review power. Moreover, the next lines are also quite telling in this regard; thus, “the Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse . . . but prescribes the rules . . .while the Judiciary, on the contrary . . . it may truly be said to have neither Force nor Will but merely judgment . . .” clearly shows how the judiciary was given this judicial review to enable it to counterbalance the other two branches of government which held bigger powers. The executive branch had its sword while the legislative had the purse but the judiciary held nothing except this power of judicial review. The judiciary is beyond a doubt or comparison the weakest of the three departments . . . and “that all possible care is requisite to enable it to defend itself against their attacks” and this defensive weapon is the judicial review because it can help curb the powers of the executive and the legislative by declaring their acts as illegal. Hamilton also declared in the essay article, and by extension the other Founding Fathers, that the “judiciary remains truly distinct from both the legislative and the Executive” that again reiterates the independence of the judiciary through its power of judicial review. This is further shown by the next passage, “ . . . there is no liberty, if the power of judging be not separated . . .” to prevent the judiciary from being overwhelmed by the two much stronger government branches and in danger of being unduly influenced to render biased court decisions explained by this line, “ . . . but would have everything to fear from its union with either of the other departments . . . “. Further, “notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary,” the Founding Fathers saw it fit to strengthen the judiciary with a special power of judicial review to prevent it from “being overpowered, awed, or influenced by its co-ordinate branches . . . “ and power of judicial review is the one thing which can significantly prevent this fear from happening and “nothing can contribute so much to its firmness and independence . . .”. Conclusion Hamilton and the Founding Fathers clearly worried about the constraints of a very limited type of constitution, and they in particular emphasized the rule of law by granting (implicitly), to the judiciary the complete independence of its courts, to free it forever from the interference or any undue influence from either the executive or the legislative branches of government. There is a clear intent to ensure the independence of the judiciary through this judicial review power so it can counterbalance the other two co-equal branches and this is done through its being the final arbiter of all things legal or constitutional in nature as it must declare whether an act is legal or not by virtue of this judicial review as a constitutionally-mandated process. This issue was long settled either by practice or jurisprudence; what is important is the spirit (intent) of the law. Reference Hamilton, A. (1788, June 14). The judiciary department. Independent Journal. 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