ABA Family Legal Guide

How the Legal System Works

The Structure of the Court System

Separation of Powers

What is judicial review?

The Constitution and the Bill of Rights enshrine certain rights, which cannot be abridged by our government. These rights include the right to worship freely, to speak and write freely, and to have fair and impartial trials.

When the government makes laws that are at odds with the Constitution, a court can declare that the law is unconstitutional. Under our system, it often falls to courts to enforce these constitutional rights. That sometimes means going very much against common beliefs or the clamor of the moment, and upholding positions that are unpopular.

The courts uphold the Constitution when they strike down a law that is impermissible under it. This practice of judicial review is often unpopular--after all, any law that got passed in the first place arguably had majority support. But judicial review is absolutely necessary if we are to live under a limited government, and if citizens are to have certain unalienable rights. A law contrary to the Constitution cannot be law. In matters of constitutional interpretation, courts have the final word--except on those very rare occasions when the Constitution is amended to overturn court decisions.