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The Judicial Review Doctrine

Marbury v. Madison (1803)

Indianapolis et al. v. Edmond et al. (2002)

Courts in the United States exercise judicial review, defined as “the power of any court to hold unconstitutional and hence unenforceable any law, any official action based on a law, or any other action by a public official that it deems to be in conflict with the Constitution.”7 The doctrine of judicial review is not explicitly found in the Constitution but was set by the Court in the case of Marbury v. Madison (5 U.S. 137 [1803]), considered by most scholars to be the most important case ever decided by the Court. The facts of the case and the politics involved are complex, but they centered around the issue of whether the Congress of the United States could add to the original jurisdiction given to the Court by the Constitution. In a unanimous opinion penned by Chief Justice John Marshall, the Court held that “an act repugnant to the Constitution is void,” adding, “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. . . . A law repugnant to the Constitution is void; . . . courts as well as other departments are bound by that instrument.”8 The judicial review doctrine applies to laws passed by Congress, state legislatures, ordinances passed by municipalities, and acts of public officials. For example, in 1998 the city of Indianapolis, Indiana, established checkpoints on Indianapolis roads in an effort to interdict unlawful drugs. Vehicles passing through those checkpoints were stopped even though there was no individualized suspicion of wrongdoing. The city conducted six roadblocks over a period of four months, stopping 1,161 vehicles and arresting 104 motorists. Out of those arrests, fifty-five were for drug-related crimes, while forty-nine were for offenses unrelated to drugs. This practice was challenged in court as unreasonable and intrusive upon individual rights. On appeal, the Court held that this automatic stopping of motor vehicles in the absence of individualized suspicion of wrongdoing violated the Fourth Amendment prohibition against unreasonable searches and seizures (Indianapolis et al. v. Edmond et al., 531 U.S. 32 [2002]). The doctrine of judicial review has significant implications in law enforcement. It means that laws passed by legislative bodies can and will be reviewed by the courts in a proper case and will be declared unenforceable if found to be against the Constitution. For individual law enforcement officers, it means that whatever they do can be challenged in court and, if held to have violated individual constitutional rights, can result in the imposition by the court of civil or criminal sanctions.

The Rule of Law The concept of the “rule of law” goes back to the days of ancient Greece and has different meanings to different people.9 Since the tragic events of September 11, 2001, the concept of the rule of law has generated more interest and has been the C H A P T E R 1 The Court System, Court Cases, and Sources of Rights


subject of debate about its proper meaning. In the words of philosopher–writer George Fletcher, Of all the dreams that drive men and women into the streets, from Buenos Aires to Budapest, the “rule of law” is the most puzzling. We have a pretty good idea what we mean by “free market” and “democratic elections.” But legality and the “rule of law” are ideals that present themselves as opaque even to legal philosophers.10

A recent writer maintains that, at one end, the concept is associated with adherence to laws that have been passed by legislatures, regardless of how just or unjust they may be. On the other end, it is associated with the concept of justice and derives its validity from the “morality of the laws that rule.” Under this concept, mere passage of laws by the legislature is not enough. The law passed must be just.11 Some people equate the rule of law with the “supremacy of the law,” whereas others associate it with “obedience to the law.” A legalistic view, meaning adherence to court decisions, is reflected in former Vice President Al Gore’s reaction when he lost the Bush v. Gore presidency case. He said, “I strongly disagree with the Supreme Court decision and the way in which they interpreted and applied the law. But I respect the rule of law, so it is what it is.”12 Perhaps the best-known meaning of the rule of law, however, is that which holds that no person is above the law, that every person, from the most powerful public official down to the least powerful individual, is subject to the law and can be held accountable in the courts of law for what they do. In the words of David Hume, the phrase means “a government of laws and not of men.”13 That phrase also highlights one of the main distinctions between a democratic and a totalitarian society. In a democratic society, even the most powerful public official or private person can be held fully accountable under the law for what he or she does; in a totalitarian society, the ruler enjoys boundless power and can do whatever he or she pleases without accountability in any court of law. Rule of law, with its opaque (meaning “hard to understand or to explain”) nature, is important in today’s climate of law enforcement on two levels. On one level, the terror brought about by the events of 9/11 has led and will further lead to the passage of laws that curtail the rights and liberties of citizens and noncitizens. Should the Constitution be interpreted to accommodate the immediate needs of a changing time, and should laws passed by legislatures that seek to protect the public from external threats be afforded greater constitutional protection by the courts? On another level, police accountability in the United States is closely tied to the concept of the rule of law. In many countries, the police are immensely powerful, and accountability for their actions barely exists. In the United States, criminal and civil liabilities (discussed in Chapter 13) are an ever-present reality in policing and represent the highest point of police accountability. Law enforcement officers, from the police chief to the newly hired police recruit, can be and are held criminally and civilly liable for what they do. The public considers this accountability a classic example of the fact that no person in this country, not even one wearing a badge of authority, is above the law. This is the most notable difference 28



■ Table 1.2 Criminal and Civil Cases Compared Criminal


Who files


Usually a private person or entities


To seek punishment for the crime committed

To seek monetary damage and/or an injunction for violation of a duty or obligation

What must be proved

That a crime has been committed and That the defendant committed the crime

Existence of a legal contractual duty or obligation and A breach of that duty or obligation resulting in harm

Proof required to win

Guilt beyond a reasonable doubt (about 95% certainty of guilt)

Preponderance of evidence (more than 50% certainty)

Bill of Rights

Limits conduct of government officials

Does not apply to conduct of private persons


Prosecutor for the government; private lawyers, government-supplied lawyers, or public defender for defendant

Own lawyer(s) for each side

If trial by jury

Usually a unanimous jury vote for conviction or acquittal

Usually a nonunanimous jury vote

Defendant’s presence in court

Required, with exceptions

Not required


Accused cannot be forced to testify in court

Defendant can be forced to testify in court


Defendant can appeal a conviction; government cannot appeal an acquittal except on questions of law, if allowed

Either side can appeal

between “policing a free society” and law enforcement in a totalitarian country. The rule of law is a concept law enforcement officers in the United States must fully understand and adhere to if they are to perform their tasks properly and constitutionally. The cases discussed in this chapter are mostly criminal cases. There are differences between criminal and civil cases which must be understood. These differences are summarized in Table 1.2.

Summary ■

The United States has a dual court system, meaning it has two levels of courts—federal and state. If an act violates federal law, it is tried in federal court; if it violates state law, it is tried in state court. If an act violates both federal and state laws, it can be tried in both courts.

Judicial review is “the power of any court to hold unconstitutional and hence unenforceable any law, any official action based on a law, or any other action by a public official that it deems to be in conflict with the Constitution.” Judicial precedent means that decisions of courts have value as precedent for future cases similarly circumstanced.

C H A P T E R 1 The Court System, Court Cases, and Sources of Rights


Rule of Law  

This article about the rule of law is taken from the Criminal Procedure, 7th edition by Rolando V. del Carme.