Judicial Review – the right of the federal courts to declare laws of Congress and acts of the executive branch void and unenforceable if judged to be in conflict of the US Constitution.
Since 1789 the Supreme Court has declared over 160 federal laws to be unconstitutional. As can be inferred, judicial review is the federal courts’ chief weapon in the system of checks and balances.
What we get from these actions are two competing ideas:
- The judicial restraint approach whereby the courts’ judges confine themselves to strictly applying the rules and language clearly stated in the Constituion.
- The judicial activist approach whereby the courts’ judges attempt to approach general principles articulated in the Constitution and other US laws, amplify those principles on the basis of some moral philosophy and apply them to the case at hand.
According to most scholars the Supreme Court has gone through three distinct phases, or historical eras.
From the late 1700s to 1865 nation building, the legitimacy of the federal government, and slavery were the great issues. During this period the Court sided with the supremacy of the federal government.
From 1865 to 1937 the most important issue was the relationship between the government and the economy. During this period the Court placed many restraints on the powers of government.
From 1938 to present the major issues were personal liberty and social equality and navigating through conflicts between the two. During this period the Court expanded the protections of personal freedom while scaling back economic freedom.
Unless one was living during the time of Alexander Hamilton, who through no fault of his own because of the time in which he lived, one should find nothing unprecedented in the Supreme Court should it find Obamacare unconstitutional.
At the time when Hamilton penned Federalists No. 78, he saw by design a very limited and strictly defined role for the Supreme Court. Then again, the founders envisioned a limited role for all branches of government.
Hamilton declared that the judiciary branch was the least dangerous to political rights. Clearly the court’s role was not to enlarge the power of itself but to confine that of the legislature. However, just like the other two branches of government have evolved so has the Supreme Court.
Even the founders could not predict the influence that political parties and political and economic ideology and mass media could have on government.