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The Origins of Judicial Review in the United States

The power of judicial review is not mentioned in the U.S. Constitution (although many constitutional scholars believe that the founders intended the judiciary to have this power). The United States Supreme Court explicitly established this power in 1803 in the case Marbury v. Madison. In that decision, the Court stated, It is emphatically the province [authority] and duty of the Judicial Department to say what the law is. If two laws conflict with each other, the courts must decide on the operation of each. [I]f both [a] law and the Constitution apply to a particular case, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. Since the Marbury v. Madison decision, the power of judicial review has remained unchallenged. Today, this power is exercised by both federal and state courts.

Judicial Review

As the branch of government entrusted with interpreting the laws, the judiciary can decide, among other things, whether the laws or actions of the other two branches are constitutional. The process for making such a determination is known as judicial review. The power of judicial review enables the judicial branch to act as a check on the other two branches of government, in line with the system of checks and balances established by the U.S. Constitution.