Freedom of Speech in the West: A Comparative Study of Public Law in France, the United States, and Germany

By Frede Castberg | Go to book overview

Chapter two
CHARACTERISTIC FEATURES OF THE SUPREME COURT AND ITS ACTIVITY

I. The Powers of the Supreme Court

It has in America always been considered the job of the courts to judge the rightfulness and legality of the resolutions of the other state organs. The principle of separation of powers, which to such a great extent marked the 1787 Constitution, is expressed in the provision in Art. III about the "judicial power of the United States", which "shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." And ever since the judgment in Marbury v. Madison in 1803 this judicial power has been considered to embrace also the power of judicial review. This has been regarded, not as a breach, but on the contrary as a consequence of the principle of separation of powers.

The position of the courts with regard to the actions of the administrative bodies is regulated by the Administrative Procedure Act of 1946, the main rule of which is the one expressed in the law's ' 119 a: "Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof." 1 The legislation can, however, to a greater or less extent preclude the judicial review, especially concerning

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1
U. S. Code, Title 5, ' 1009 a.

-179-

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