Why Liberals and Conservatives Flipped on Judicial Restraint

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The legal power of the USA arms of government, the Executive and the legislative actions to be subjected to review and the power to examine their conventionality with the constitution. They also have the power to bring them down in the case of any constitutional inconsistency is known as the Judicial review. Judicial review is well known to be the supreme court’s power because it can declare an Executive or legislative act of constitutional violation. The purpose of having a Judicial review is to interpret federal laws, give punishment to those who break the rules, legal disputes resolution and make civil case decisions. It is also their responsibility to judge the guilty and the innocent persons based on criminal law. Therefore, judicial review can be or cannot be within the bounds of the supreme court’s constitutional power.

Judicial review gives protections against the autocracy of the majority and guarantees constitutional protection of liberty and democracy. The Judicial review has the power of the Supreme Court. For instance, in 1803, Marbury v. Madison became the first case in the supreme court whereby the supreme court case recognized its obligation in reviewing the constitutionality of acts of Congress. The court authorized the striking down of the law as unconstitutional. Madison’s opinion on the matter, Chief Justice John Marshall said that the supreme court must overturn unconstitutional legislation. It was necessary for their swearing-in of office to endorse the constitution according to Article six of the form (Walker, 2018). The top court claimed that it did not have the jurisdiction, and the declaration was made that the law allowing the court hearing was unconstitutional.

On the other hand, Judicial reviews are seen as democratically illegitimate. It takes the final say on the decision of political controversies leaving the ordinary citizens out of it. It means that the Judiciary review is Majoritarian and participatory. According to Roe v. Wade (1973), The supreme court ruling states that abortion was prohibited and unconstitutional (Brudney & Leib, 2019). The court claimed that a woman’s right to perform an abortion is part of the right to privacy seen in the fourteenth amendment.

The judicial review is the USA power to review actions and laws from the president and the Congress for constitutional determination. It balances the three branches of government to bind one another and ensure that the power is balanced. According to Hamilton, the judiciary’s responsibility was to implement the people’s will as articulated in the constitution, thus controlling the abuse of power by the legislative and the executives. The judicial review gives courts the ability to examine the Executive, legislative and administrative arms of government actions and decide whether the step is dependable on the constitution. Activities that are seen to be unreliable are acknowledged as unconstitutional and hence null and void.

The judicial review gives the power to the court to declare acts of other arms go government to be unconstitutional; hence it cannot be enforceable. For instance, if Congress were to authorize a law banning all newspapers from publishing certain political information, the court would have the power to rule the violation n of the law in the first amendment, thus unconstitutional. According to Politics and the judiciary the Supreme Court and judicial review (2013), the constitutional review is being taken for granted, and it is the main feature of the government in the United States of America (Balkin, 2019). The laws contain sex marriage bans, gun restrictions, voter identification laws, abortion restrictions, and, lastly, government programs.

The notion of judicial review is also practiced in other different countries. A court in Romania recently gave a rule of permitting immunity to lawmakers, and hate speech against public officials was unconstitutional (Urvashi, 2021). The court in Greece granted a practice that public employees’ wage reduction was unconstitutional. European Union legal system gives power to the European Union instead of providing a judicial review. The judicial review power is also implemented in the courts of Japan, Canada, India, and other countries (Matoba et al., 2020). Ultimately, the trend today in the world is to allow courts to have the power to review the acts of other arms of government like the Executive, legislative, and judiciary.

The idea of the supreme court having the power to dissolve laws implemented by the legislation is not older than in the US. Judges are known as those who apply rules, but they do not create nor destroy legal principles (Versteeg & Zackin, 2018). In Britain, common laws are based on American law, judges as known as the source of the direction, and they can come up with new rules and have the power to refuse any legal principles that are invalid (Democracy and judicial review, n.d). However, Britain is known not to have a constitution, and the court can terminate any unconstitutional practice which was not applicable in Britain. Furthermore, Britain has an agreement to the legislative supremacy idea. So, the United Kingdom has no power to terminate any legislation.

In conclusion, the supreme court of the US has the power of judicial review, and the court decides whether any decision or law implemented by the Executive or legislative arm of government or any administrative court or agency of the government is constitutional or unconstitutional. The judicial review helps balance power rather than abusing power based on checks and balances between the legislative and the Executive. However, it has some weakness, like being majoritarian and participatory. Judicial review is within the bounds of the Supreme Court’s constitutional power.

References

Balkin, J. M. (2019). Why liberals and conservatives flipped on judicial restraint: Judicial review in the cycles of constitutional time. Tex. L. Rev., 98, 215. Web.

Brudney, J. J., & Leib, E. J. (2019). Statutory interpretation as interbranch dialogue. UCLA L. Rev., 66, 346. Web.

Democracy and judicial review. (n.d.). Constitutional Argument and Institutional Structure in the United States. Web.

Matoba, N., Liang, D., Sun, H., Aygün, N., McAfee, J. C., Davis, J. E.,… & Stein, J. L. (2020). Common genetic risk variants identified in the SPARK cohort support DDHD2 as a candidate risk gene for autism. Translational psychiatry, 10(1), 1-14. Web.

Urvashi, A. (2021). Judicial review: Comparative study in India and USA.SSRN Electronic Journal. Web.

Versteeg, M., & Zackin, E. (2018). Limiting judicial discretion. In Comparative Judicial Review. Edward Elgar Publishing. Web.

Walker, C. J. (2018). Attacking Auer and chevron deference: A literature review. Geo. JL & Pub. Pol’y, 16, 103. Web.

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Why Liberals and Conservatives Flipped on Judicial Restraint

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