Judicial Review
Judge Greg Galler
April 12, 2012
The role of the courts has received a lot of attention following hearings at the U.S. Supreme Court
regarding the law commonly known as “Obamacare.” Many, including the President, have discussed
something called “judicial review.” Judicial review refers to a power held by the courts to decide if a law
violates the Constitution or not. If the law violates the Constitution, the courts will “strike down” the
law declaring it invalid.
Perhaps ironically, the court’s power to declare a law to be unconstitutional is not specifically addressed
in the U.S. Constitution. Instead, it is considered to be an inherent power of the courts. The U. S.
Supreme Court first declared a law to be unconstitutional in 1803 in a case known as Marbury vs.
Madison. In that case, Chief Justice John Marshall described and outlined the power of judicial review
by asking the question: Can a law “repugnant to the Constitution” still become the law of the land?
Justice Marshall observed that ours is a government of “laws and not of men.” Our written
Constitution, he explained, has as one of its essential purposes, intentional limits on governmental
power. He maintained that it would be absurd to limit governmental powers, in writing, but then to
allow the legislative and executive branches to exceed those limitations at any time they chose. He
correctly stated that Constitutional limitations that could be exceeded at any time are not limits at all.
Accordingly, all laws, to be valid, must conform to the limitations contained in the Constitution. Further,
our system of checks and balances demands that it is the courts’ obligation to determine if a law violates
the Constitution. Justice Marshall stated that judges cannot close their eyes to the Constitution’s limits
and that, “It is emphatically the province and duty of the judicial department to say what the law is.”
Different judges, however, go about the process of judicial review differently. There are two main
schools of thought on Constitutional interpretation.
Those justices that are generally considered to be more liberal tend to subscribe to the idea of a Living
Constitution. They reason that the drafters of the Constitution could not have anticipated what society
would be like years into the future. Therefore, laws should be measured against the broad ideals and
spirit of the Constitution. They seek a more “responsive” Constitution. More liberal justices typically
favor a broader reading of governmental power.
Those justices that are generally considered to be more conservative tend to subscribe to the idea that
laws should be measured in accordance with the Constitution’s original words and meanings. They
reason that a written Constitution is of little value if its’ words and ideas can be given different meanings
simply because a new set of justices sit on the court. More conservative justices typically favor a more
narrow reading of governmental power.
The Supreme Court’s decision regarding Obamacare will likely be announced in June. That decision may
turn on which of these theories of judicial review carries the day.
Judge Galler is chambered in Washington County. If you have a general question about the law or courts for
Judge Galler, send your question to the editor of this newspaper. Learn more about Judge Galler, or listen to a
podcast of his columns at www.judgegreggaller.com.