Judicial Review is the power of American courts to invalidate all laws or governmental actions that are contrary to the U.S. Constitution. First established in the landmark case of Marbury v. Madison, 5 U.S. 137 (1803), Judicial Review is arguably a logical outgrowth of the Supreme Court’s Article III appellate jurisdiction and the supremacy of the written Constitution provided for in Article VI. Essentially, Judicial Review allows a court to grant relief to a party who claims a law or act of the government violates the Constitution. When this claim is asserted it logically necessitates a court deciding if the two laws are in conflict or not. If they are, then the higher law--the Constitution--wins.

   So, if Congress were to pass a law making Zoroastrianism the official religion of the United States, someone would quickly sue the government to quash the law. Needless to say, any judge, Zoroastrian or not, would rule that the law is invalid because the First Amendment says "Congress shall make no law respecting an establishment of religion." That is Judicial Review simpliciter.

   The difficulty arises when the claim is less clear. What if someone claims that the Constitution prohibits any state from having a law regulating access to contraceptives? What if someone claims that the Constitution prohibits a state from having laws that prohibit homosexual sodomy? What if someone claims that the Constitution prohibits any state from having a law that prohibits bakery employees from working more than 60 hours a week? Although the Constitution does not speak to any of these matters, the Supreme Court held that there was a constitutional right to contraception (Griswold v. Connecticut {1965}), but no such right to homosexual activity (Bowers v. Hardwick {1986}). As for bakeries, the Supreme Court invalidated the law in 1905 (Lochner v. New York) but completely changed its mind, later on (West Coast Hotel v. Parrish {1937}) (e.g., Ferguson v. Skrupa, 372 U.S. 726 {1963}). So, the big question is, just what does the Constitution say?

   This is where huge issues of Constitutional interpretation and "judicial philosophy" arise. Different judges have different "philosophies" of Constitutional interpretation (or "construction"). There are two basic perspectives: (1) Loose Constructionism, which favors judicial discretion to adapt, interpolate or reinterpret the document in order to give greater effect to its abstract ends and reconsile it to modern circumstances and (2) Strict Constructionism which insists on an interpretation based on the fair import of the text, especially in light of the context in which it was written.

   The Strict Constructionists see it this way:

   Standing by what the law actually says is the only way the Court’s rulings can ever be legitimate--anything else is just "making it up" or basically lying about what you think the law means. In our eyes, judges don’t have the right to use their job as guardians and interpreters of the Constitution for the purpose of modifying or virtually rewriting it. After all, achieving concreteness of meaning is precisely why we write laws down in the first place: The Framers chose a written constitution in order to protect us all from usurpation and abuse--so that no man would be above the law and our rights would be secure in a written form. Of course the Constitution needs to change with the times--that’s why the Constitution has an amendment process--we have changed the Constitution 27 times already, every seven years on average. Unelected judges, however, do not have the power to make these changes, only the people’s elected representatives can. When judges go beyond a reasonable reading of the constitutional document they undermine the very source of our law and the sole guarantor of civil rights in our society by engaging in precisely the kind of abuse that the written Constitution was designed to prevent. In essence, they choose to place themselves, as judges, above the law. We respect the law as written by those with the authority to write it. This does not mean we see the Constitution as "a dead piece of paper," rather, we see it for what it was intended to be: an immortal document that brings the very same rights, laws and democratic structure to each new generation of Americans.

   The Loose Constructionist, on the other hand, takes a very different view:

   Some think that the Constitution is a dead, lifeless piece of paper that tries to impose precisely the same laws designed for the 1700’s on today’s American society. We disagree: The Constitution is a remarkable document and the very embodiment of the great principles upon which our nation was founded. However, not all these principles are set out in their fullness, nor are they written down with today’s world in mind. The Justices of the Supreme Court are the bridge between the lofty vision of the Framers and its application in the modern world. That is our job--not to be blindered historians, trying to think like a person would two-hundred years ago--but jurists with the freedom to take the steps needed to achieve the underlying goals of the document. In this way we make the Constitution alive and keep it in step with the complex world of today. There is an amendment process, of course, and it serves to make certain major additions and alterations to the Constitution as the people feel they are necessary. It is a long and difficult process, however, and cannot accommodate the subtle, frequent, yet necessary accommodations changing times and circumstances require. The Framers envisioned a nation of freedoms--and enshrined many such rights specifically in the Constitution. The Court must be prepared to weave these specific rights into a consistent fabric of Liberty to protect the individual from the powers that be. This requires that the Court be ever prepared to use the Constitution as its guide and inspiration for protecting individuals civil liberties. It is this dynamic flexibility that will assure the protection of our rights.

   Because the Constitution says nothing about abortion, strict constructionists generally refuse to strike down laws against abortion, where loose constructionists usually invalidate them as violating the Constitution under the theory of a constitutional right to privacy.