Although the principles of judiciary demand the judicial process to follow due legal processes to the letter, legal crises do occur in some instances. Legal conflict arises when inconsistencies emerge between the constitution and the general laws.
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A classical example is the Marbury v. Madison case of the United States in which a legal conflict arose due to the inconsistency of the United States constitution with the Judiciary Act. According to this case, “William Marbury petitioned the Supreme Court to compel James Madison, Secretary of State to effect his appointment as a commissioner of Justice for Peace in Columbia District but John Marshall, Chief Justice denied the petition as he termed it unconstitutional” (Reisman, 2007, p. 3).
This became a landmark ruling since the Supreme Court, for the first time in the United States history, declared an Act to be unconstitutional. In this ruling, John Marshal realized that there was legal conflict between the constitution and the Judicial Act, and the only way to conduct constitutional review was through the Supreme Court.
The Marbury v. Madison ruling coupled with some clauses in Article III authorizes the Supreme Court to carry out judicial review. The Article III of the United States constitution states that, “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction…in all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction” (Stone, 2007, p. 35).
Therefore, the United States constitution gives the powers to the Supreme Court to exercise judicial review in cases where legal conflict arises. The prime function of the Supreme Court in judicial review is to protect the constitution and ensure that all statutes are consistent with the constitution.
The constitutions of England and Netherland do not give powers to their Supreme Courts to exercise judicial review on the constitutionality of statues and treaties, because legislators have the mandate of ensuring that they only pass constitutional acts. In cases of constitutional dispute concerning “…the right interpretation of a law or a treaty in accordance with the constitution … the judge cannot have supremacy over the legislator, because the question of constitutionality of an act is more political than technical-judicial” (Huq, 2008, p. 32).
Halsema proposal seeks to have the Supreme Court assume the jurisdiction to check constitutionality of statutes and treaties. The approval of the Halsema proposal means that the parliament and the government will have to share their mandate of constitutional review with the judiciary, hence judicial review.
Most Americans accept judicial review even though it is not explicit in the constitution because it has provided means of checking constitutionality of statutes. Statistics shows that, “in the two hundred years of judicial review 175 federal laws and 1006 state laws were declared unconstitutional (1789-2004)” (Whittington, 2009, p. 12).
This means that if there was no judicial review, the courts could still be grappling with over 1000 legal conflicts, which slows down the wheels of justice. The landmark ruling of the Marbury v. Madison case set precedent on ways of solving legal conflicts that emerge quite often due to the inconsistencies of the statutes with the constitution.
Despite the fact that judicial review has helped to speed up the due process of the law, Thomas Jefferson criticized it saying that, “to consider judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy” (Reisman, 2007, p. 8).
Jefferson argues that judges are common people with same passions and interests that might lead them to make compromised judicial reviews to attain their desired ends. I agree with Jefferson argument that it is quite dangerous to give constitutional review powers to the judiciary since too much power corrupts ultimately. To counter the dangers associated with excessive judicial review powers, the parliament should provide provisions that limit the autonomy of the judicial review process.
Huq, A. (2008). Constitutional Courts and Judicial Review. Center on International Cooperation, 4(12), 31-34.
Reisman, D. (2007). The Supreme Court. New York Life Journal, 15(32), 1-12.
Stone, G. (2005). Constitutional Law. New York: Aspen Publishers.
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Whittington, K. (2009). The Theories of Judicial Review. Spring Journal, 20(1), 1-18.