58 Chapter 2Chapter 2 || The Constitution and the FoundingThe Constitution and the Foundingspecific countries that are viewed as terrorist threats (see the
How It Works graphic in this chapter). Critics claim that the
expansion of executive power in order to fight terrorism has
threatened the institutional balance of power by giving the
president too much control over functions previously carried
out by the courts.^22Judicial Review The Constitution did not provide the
Supreme Court with any negative checks on the other two
branches. Instead, the Court itself (in the landmark decision of
Marbury v. Madison in 1803) established the practice of judicial
review, the ability of the Supreme Court to strike down a law or
an executive branch action as unconstitutional. For example,
early in Trump’s first year, federal courts struck down the
initial versions of his travel ban because they were viewed
as discriminatory against Muslims. According to Madison’s
notes, nine of the eleven framers who spoke on the topic clearly favored explicitly
granting the Supreme Court the power of judicial review, but the issue was not
resolved at the convention. In several states assertive courts had struck down state
laws, and delegates from those states resisted giving an unelected national court
similar power over the entire country.
Although judicial review is not explicitly mentioned in the Constitution,
supporters of the practice justify it by pointing to the supremacy clause, which states
that the “Constitution, and the Laws of the United States which shall be made in
Pursuance thereof... shall be the supreme Law of the Land.” As Chief Justice John
Marshall argued in Marbury v. Madison, to enforce the Constitution as the supreme
law of the land, the Court must determine which laws are “in pursuance thereof.”
Critics of judicial review argue that the Constitution is supreme because it gains its
legitimacy from the people and that therefore elected officials—Congress and the
president—should be the primary interpreters of the Constitution rather than the
courts. This dispute may never be fully resolved, but Marshall’s bold assertion of
judicial review made the Supreme Court an equal partner in the system of separate
powers and checks and balances rather than “the least dangerous branch” that the
framers described.judicial review
The Supreme Court’s power to strike
down a law or executive branch action
that it finds unconstitutional.The Constitution attempts to strike a
balance between protecting our civil
liberties from government intrusion
and providing for a government
strong enough to protect our national
security. The protesters pictured here
were responding to news that the FBI
was urging Apple to unlock an iPhone
during the investigation into a terrorist
attack in San Bernardino, California.
Apple has since announced a new
secure system that prevents phones
from being unlocked.“Why
Should
I Care?”
If you remember anything from your elementary civics class, it is probably some
foggy notion of the system of checks and balances and separation of powers. But
why is this system so important? This institutional framework provides the basis for
our government and explains the nature of political conflict and outcomes. When the
government shuts down because of a dispute over spending or the Senate blocks the
president’s court nominees, this is because the president and Congress have different
roles but can check each other’s powers. Understanding checks and balances and
separation of powers helps us be realistic about what government can do and shows
us that all parts of the government are critical, but none are dominant, in making policy
and enforcing laws.Full_03_APT_64431_ch02_030-069.indd 58 16/11/18 1:34 PM