The Role of Judicial Review in safeguarding civil liberties

Is it a violation of the Constitution for a state to regulate content?  The 2022 case, City of Austin, Texas vs. Reagan National Advertising of Texas Inc. was a civil liberties case that made it to the Supreme Court. In this case, Regan National Advertising and Lamar Outdoor Company wanted to advertise in the city of Austin, Texas sought out to digitize on billboards and off-premise signs to promote their company. Their application for digitization was quickly rejected by the City of Austin due to their refusal of off-premise signage. This case is centered around the first amendment, which protects the freedom of religion, assembly, speech, press, and the right to petition. In a 6-3 decision in favor of the City of Austin, deeming that on and off premise signs were a content-neutral distinction based on location. Therefore, the content-based regulation did not require the highest level of judicial scrutiny. This case relates to the role of judicial review in safeguarding civil liberties because it was invasive to free speech. The City of Austin was able to regulate the Reagan National Advertising of Texas Inc. had to voice. The city was seen as one that repressed certain kinds of expression.  Judicial Review was utilized to determine if civil liberties were being infringed upon. In this case they were not due to the fact the court focused more on digital vs. non-digital signage rather than the content being posted. This aligns with how judicial review is a key element in safeguarding civil liberties, and making certain the government isn’t imposing fundamental rights such as freedom of speech. In this article we will delve into the origins of judicial review, why civil liberties need protection, and how judicial review logically safeguards constitutional rights.

How Judicial Review came to be: 

Judicial review has had a long history, and constitutional convention delegates such as James Madison and Alexander Hamilton preached its purpose. Federalist paper No. 78 by Hamilton directly defends the concept of judicial review. Hamilton states “the Constitution ought to be preferred to the statute, the intention of the people  to the intention of their agents.” Hamilton believed the Constitution should reign supreme over laws passed by Congress - Congress being the citizen’s “agents”. When he released Federalist paper No.78, Hamilton wanted the courts to be able to interpret the Constitution as well, and have judicial independence through life tenure.  The Judiciary Act of 1789 was the first piece of legislation passed to organize the U.S. court system. The Judiciary Act was signed into law by President George Washington, and established the structure of the United States federal court system. It also created lower federal courts, such as the District Courts and Courts of Appeals in order to handle the majority of cases, while still developing legal precedents. Then in 1803, the case Madison v. Marbury was sent to the Supreme Court and Chief Justice John Marshall supported judicial review to be implemented into the U.S. court system. Additionally, Chief Justice John Marshall deemed a part of the Judiciary Act of 1789 to be unconstitutional due to the fact that Congress does not have the power to alter the constitution through ordinary legislation, since the supremacy clause establishes the Constitution as the supreme law of the land.  Madison v. Marbury became a landmark court case, and the decision put judicial review in place.  Today, judges have the power to interpret the constitution and challenge the constitutionality of laws put into place.

Why Civil Liberties need protection:

  Civil liberties protect the freedoms of citizens, and make a democracy prosperous. It is essential that the court uphold civil liberties in order to serve citizens justice, and avert arbitrary power from taking charge. The U.S. federal court system is able to safeguard each individual right in order to avoid the government from abusing their power, and overstep on constitutional freedoms such as: religion, free speech, and due process. The court is able to check other governmental branches to ensure justice is upheld. Additionally, civil liberties safeguard minority rights. While it is true democracies favor the majority, minority opinions are still valued. Therefore, civil liberties ensure that even marginalized citizens maintain their rights. For example, religious minorities are by no means forced to conform to the majority religion in a democracy. Lastly, federal courts want to preserve citizen’s sovereignty to foster widespread prosperity. Courts have a responsibility to protect its citizens, and maintain the public’s trust. When courts proactively protect civil liberties the public becomes more confident in their legal system, and are more likely to have greater political involvement. Overall, it is vital to protect civil liberties to uphold democracy and maintain the balance of power our founding fathers fought for. 

How Judicial Review systematically safeguards our personal freedoms:

  Judicial review is able to safeguard citizen’s personal freedoms by giving power to the judicial branch to invalidate laws that violate the constitution. The judicial branch is able to check on the executive and legislative branch, which ensures each branch acknowledges its limitations. It is important each governmental branch is aware of its power so tyranny does not pursue, and that the government remains deliberative. Additionally, the judicial review gives judges the ability to invalidate laws that violate the Constitution's purpose. It provides the court the power to declare laws as unconstitutional, and can void any governmental action that goes against the Constitution. Lastly, judicial review has the ability to safeguard minority rights. For example, the 1966 case Miranda vs. Arizona made way for a new law to be created. Due to this case, police are now required to inform criminals of their constitutional rights before they’re interrogated. This protection reinforces the fifth and sixth amendments of the Bill of Rights, and ensures vulnerable minorities are aware of their rights, which protects against excessive force and creates a more fair legal system. 

The criticisms of Judicial Review:

Although judicial review has its preachers, some criticize the concept and point out its weaknesses. A choice by the Supreme Court did cause public disappointment, and that choice was to overturn Roe v. Wade (1973). This choice made it legal for 26 states to ban abortion, which makes abortion no longer protected by the United States Constitution. The Dobbs v. Jackson Women’s Health Organization (2022) decision emphasizes how judicial review allows Supreme Court justices to re-interpret the Constitution and overturn precedents. Additionally, some argue that judicial review is not a fundamental principle in American politics because it is not explicitly stated in the constitution. 

Comparative Politics: 

  Fortunately, Judicial Review is not just used in the United States, but also worldwide. It is a key tool in comparative politics because it allows countries to balance power and safeguard individual’s civil liberties. While the concept of judicial review is alike across countries, its application may differ depending on the nation’s legal system. For example, in Germany “The Federal Constitutional Court is the only organ that is competent to decide whether laws are compatible with the Constitution.” The Federal Constitutional Court determines if laws align with the country's constitution, called the Basic Law. France uses judicial review as well through the French Constitutional Council. In 1974 the court’s power of judicial review was expanded, which was able to turn the Constitutional Council into a more powerful jurisdiction with discretionary review and uphold the legitimacy of the French legal system. Judicial review has definitely grown worldwide, and has established an umpire to overview delegated and limited powers. This has enabled countries to rectify wrongs with a constitutional right. 

Conclusion: 

  Judicial review stands as a core principle in the framework of the United States government. Judicial review has the power to review operative laws and governmental actions to ensure rule of law is being maintained. The case City of Austin, Texas vs. Reagan National Advertising of Texas Inc. showcases judicial review in action through its decision: a city law was deemed content-neutral by interpreting the constitution’s first amendment. The case was able to provide constitutional clarity, which influenced the application of the constitutional principle within a governmental law. At the end of the day,  judicial review isn’t just a legal tool, but a guardian to our personal freedoms from encroachment.

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Works Cited

Ahdout, Z. Payvand. “Enforcement Lawmaking and Judicial Review.” Harvard Law Review, 10 Feb. 2022, harvardlawreview.org/print/vol-135/enforcement-lawmaking-and-judicial-review/.

Berg, Judith A., and Nancy Fugate Woods. “Overturning Roe v. Wade: Consequences for Midlife Women’s Health and Well-Being.” Women’s Midlife Health, vol. 9, no. 1, 6 Jan. 2023. National Library of Medicine, womensmidlifehealthjournal.biomedcentral.com/articles/10.1186/s40695-022-00085-8, https://doi.org/10.1186/s40695-022-00085-8.

Cooper, Ryan. “The Case against Judicial Review.” The American Prospect, 11 July 2022, prospect.org/justice/the-case-against-judicial-review/.

hlr. “City of Austin v. Reagan National Advertising of Austin, LLC.” Harvard Law Review, 10 Nov. 2022, harvardlawreview.org/print/vol-136/city-of-austin/.

“Judiciary Act of 1789.” LII / Legal Information Institute, www.law.cornell.edu/wex/judiciary_act_of_1789.

Library of Congress. “Research Guides: The Federalist Papers: Primary Documents in American History: Federalist Nos. 71-80.” Loc.gov, Library of Congress, 2019, guides.loc.gov/federalist-papers/text-71-80.

Oyez. “Marbury v. Madison.” Oyez, 2018, www.oyez.org/cases/1789-1850/5us137.