The power of Judicial Review is implicit in the American Constitution. It has nowhere been dealt in detail. The two provisions are:
Article VI which provides that the “Constitution, and the laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land” and Article III, Sec. 2, provides that “the judicial power shall extend to all cases, in land and equity, arising under this constitution, the law of the United States, and treaties made or which shall be made, under their authority.
However the issue was made clear is Marbury Vs Madison (1803) case; it underlined the view that the Judicial Review is a part of Constitutional Law. There are following implications of Justice Marshall’s decisions.
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Firstly, the constitution is a written document which clearly defines and limits the power of government.
Secondly, the constitution is a fundamental law and is superior to the ordinary law passed by Congress
Thirdly, the Act of Congress which is contrary to and violation of the fundamental law is void and cannot bind the courts.
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Fourthly, the judicial power obligation to uphold the oath, render it necessary for the courts to declare unconstitutional those acts of Congress which contravene the fundamental law.
It must be emphasized in this connection that the courts are not concerned with policy, wisdom or expediency but only with constitutionality of legislation. In the opinion of Supreme Court, “it neither approves, nor condemns any legislative policy.
Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution and having done that, its duty ends.”
However, the critics have accused the Supreme Court of becoming a non-elective super-legislature. The judgments have wide ranging consequences. Issues of public policy are severely affected by a minority of American society sitting in the judicial branch of government.
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Of late, there has been a change and Supreme Court has undergone modernization and there has been a substantial change in its functioning.