Theories of Judicial Review

However, he then give tongue to that the motor hotel did not have master key jurisdiction all everywhere the matter. While an act of Congress purported to give the Court original jurisdiction, the spirit said that the Court's only jurisdiction in this state of affairs was appellate. Since the Court had the duty to disregard un inbuilt legislation, it could only apprize the action. Marshall had asserted the idea of juridical supremacy over the separate come apartes of the government with regard to questions of legal duty and constitutional interpretation. He had also avoided a confrontation with the executive branch that the Court would have lost.

Marshall launch the use of the teaching of juridical review by the Supreme Court, a school of thought which has ne'er been questi sensationd. Many also assert that he established a tradition of judicial activism on the part of the Court, a tradition which has waxed and waned over the decades. He adopted judicial review by the Court without relying upon any precedent by the Court, denying it to the other branches. It is somewhat remarkable that the decision in Marbury was never challenged. However, the precedent of judicial activism established in Marbury has been challenged over the years.

joke Hart Ely has described the debate over judicial activism as interpretivism versus non-interpretivism. He says that interpretivism refers to the idea that judges deciding constitutional issues should fasten themselves to e

Cox, Archibald. The Role of the Supreme Court in American Government. New York: Oxford University Press, 1976.

This is a classic in legal philosophy. Ely was an immediate critic of the Roe v. Wade legal age opinion as one of the most egregious examples of judicial activism, or non-interpretivism.

His criticism came not from a personal ambition to abortion but as a critic of essential due process analysis. Ely argued that Roe was a natural fender of the right of privacy found by the majority in Griswold v. Connecticut. In this book, Ely examines the various arguments in favor of both interpretivism and non-interpretivism. He eventually stakes out a position in favor of a liberal form of interpretivism, whereby Constitutional supply are interpreted according to the overall spirit of the Constitution.

Ely, nates Hart. Democracy and Distrust; A Theory of Judicial Review. Cambridge: Harvard University Press, 1980.

The other type of interpretivism accepts this last fact and says that construction of one crabby provision should be based not only upon the wording of that provision, but also upon the content of other provisions and the Constitution as a whole. One must use the full general themes of the Constitution in order to reach an understanding of a particular provision. This is a more flexible form of interpretivism and one which is advocated by many critics of judicial activism.

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