Michaela C.

asked • 10/24/14

Why has judicial review remained controversial to the present day?

I have constantly researched this and I am getting very confused about it.

2 Answers By Expert Tutors

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Eric T. answered • 10/24/14

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Leah S.

Your point of the judicial branch being the most powerful out of the branches is completely inaccurate, as federalist paper 10 specially states that it has the least power. Most definitely not the most. This is because judges can not examine cases being unconstitutional until it has been brought to court. Therefore, the judicial branch is the least powerful, making the executive and legislative overrule as the creator and enforcer.
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02/14/20

Jacob W.

tutor
Leah, Federalist Paper Number 10 was written to address matters of populism and factionalization. Federalist Paper Number 78 was written to address the extent of judicial power. Keep in mind that Marbury v. Madison was decided long after Federalist Paper Number 78 was published. Of course, you're right that the Federalist Papers contemplate a limited judicial power--but Judicial Review as described by Marbury v. Madison is not a limited judicial power. Rather, Marbury v. Madison establishes "it is emphatically the province and duty of the judicial department to say what the law is". Some have claimed this power grab is justifiable as an essential element of the rule of law. Others claim that it was not clear from the Constitution that the judiciary had more of a right to interpret the Constitution than the legislature or the executive. This is why the controversy persists, and why some believe the Judiciary to be the most powerful branch while others believe it to be the least powerful. Consider the political context of Judicial Review. Many of the most renowned Supreme Court decisions are the consequence of Judicial Review. This includes Roe v. Wade, Brown v. Board of Education, the Dredd Scott decision, as well as many less well known but equally important opinions.
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09/20/20

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