Judicial Review of Legislation in the United States An Overview of the Basic Core Debate of Its Legitimacy I. Introduction One of the basic rights of the United States Supreme Court, and a primary foundation for the power which it exercises over the American legal system and the country as a whole, is the doctrine of judicial review. Judicial review says that the actions of the executive and legislative branches of government can be subject to review and possible invalidation by the judicial branch. It allows the Supreme Court to take an active role in guaranteeing that the other branches of government act in compliance with the U.S. Constitution. (Janda, Berry, Goldman, Schildkraut, and Hula, 2012). The separation of powers gives the court …show more content…
This argument is based on the theory that our system of constitutional government, the government acts as the agent of the people and should exercise their power consistent with those imposed in the form of the constitution (Harel & Kahana, 2010). But if the interests of the people and the government diverge, those who have been entrusted with public power may attempt to seize more power given to them by the constitution or to turn that power against the people themselves. The people will have difficulty asserting control over a potentially disloyal government. In order for the people to meet this challenge, they must first be made aware of this bad behavior. Under the instrumentalist theory, judicial review is designed to the people with a right to a hearing to raise a grievance, and to challenge decisions that may have impinged on their rights. JUDICIAL REVIEW OF LEGISLATION IN THE UNITED STATES 5 The right to a hearing is a fundamental duty of the state to consult its citizens on their rights and how those rights might be affected. They argue that courts that engage in judicial review perform monitoring and coordination functions. Judicial review serves a similar function of …show more content…
However, although the power of judicial review creates the danger of making it superior to the legislature as the ultimate lawgiver, nowhere is judicial review even mentioned in the constitution. As a result, many call the power of judicial review undemocratic (Waldron, 2006). It has been argued that the fact that judges are appointed rather than elected is wrong to give them the power to be the ultimate arbiters of all constitutional questions. These lifetime appointments place judges in a position where their decisions are totally independent of control of either the people or the legislature. Given that court decisions resulting from judicial review are rulings coming from judges who are not held accountable through the electoral process, it has been argued time and time again that judicial review is not consistent with the spirit and form of our democratic government, and in a free society. III. Popular Acceptance Despite these arguments against judicial review it has and continues to be popularly accepted. The main reason is stated in the text of the Supremacy Clause of the federal JUDICIAL REVIEW OF LEGISLATION IN THE UNITED STATES 6 Constitution. It specifies that the Constitution is the “supreme law of the land”, and that