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 website. Learn more about Judge Galler, or listen to a podcast of his columns at www.judgegreggaller.com.