Judicial nullification
Judicial nullification is a right of judges to nullify (make invalid) a law if they feel it is too harsh in a certain situation in which it is being applied.[1] During the Constitutional Convention, many delegates, including George Mason, Elbridge Gerry, and James Wilson, felt that courts could decide if laws wereunconstitutional and then refuse to enforce it.[2] However, other Founding Fathers, including John Francis Mercer, Gouverneur Morris, and John Dickinson, argued against allowing judges to have that power.[2]
The issue was left unanswered. However, when deciding that a new law needed the approval of the President, all attempts to have the judiciary approve new laws were soundly defeated.[2] "Judicial nullification" is a term that is sometimes used to mean jury nullification. More often it means nullifying a law, legal code or statute by a member of the judiciary.
In 1832, South Carolina decided that a new tariff law was unconstitutional and so was not really a law. Vice President John C. Calhoun agreed, but President Andrew Jackson disagreed and threatened to send troops. The two sides negotiated. Congress changed the tariff, and South Carolina decided the new law was not against the Constitution.
In 2011, the Supreme Court made a ruling that in essence decided thar lower court judges may ignore the law.[3] There were three petitions before the Court asking if federal courts need to be stopped from ignoring laws, rules, and facts.[3] The Supreme Court refused to grant certiorari (a writ seeking judicial review of a matter).[3] In other words, the Court refused to consider the three petitions.[3]
References
- ↑ Judge H. Lee Sarokin (22 May 2010). "Should There Be Judicial Nullification?". Huffington Post. Retrieved 1 March 2016.
- ↑ 2.0 2.1 2.2 W. Trickett, 'Judicial Nullification of Acts of Congress', The North American Review, Vol. 185, No. 621 (Aug. 16, 1907), pp. 849–850
- ↑ 3.0 3.1 3.2 3.3 Dr. Eowyn (25 January 2011). "Supreme Court Says Judges Can Ignore the Law". Fellowship of the Minds. Retrieved 1 March 2016.[dead link]
