Judicial review: West's Encyclopedia of American Law (Full Article) from Answers.com

Is a distinctive power associated with the Supreme Court that is nowhere specifically mentioned in the Constitution. Chief Justice John Marshall in Marbury v. Madison (1803) asserted the major principle on which it rests by observing: “[i]t is emphatically the province and duty of the judicial department to say what the law is” (p. 177). Through judicial review the Court most dramatically asserts its authority to determine what the Constitution means.

The power of the Court to review the law extends in two directions. The first involves decisions by other branches of the federal government. These cases include actions taken by the executive branch, like the decision by President Richard Nixon to withhold taped records of conversations in the White House, and statutes passed by Congress, such as the Missouri Compromise, which excluded slavery from northern portions of the Louisiana Purchase territory. Judicial review also expresses the authority of the federal courts over state laws and judicial decisions that involve the federal Constitution. Whether involving federal or state matters, the practice of judicial review has been marked by dynamic expansion and persistent controversy. Judicial power has been consolidated both in the superiority of the federal judiciary over the states and of the Supreme Court over the other branches of the federal government. The authority of the federal government that became centralized after the Civil War is one of the pillars of judicial review and vice versa. Justice Thurgood Marshall, in commenting on the constitutional bicentennial celebration of 1987, said that the Constitution did not survive the Civil War, but was remade following that conflict. Since the late nineteenth century, power has come to be increasingly centered in a Supreme Court that would be unrecognizable to the founding generation. Not only do the justices now have a home and no circuit riding responsibilities, but the power to subject the acts of other branches of the federal government and the states to judicial scrutiny is widely accepted. Thus, judicial review is a dynamic institution that expands with the federal authority over the nation.

Scholars trace the origins of judicial review to Dr. Bonham's Case (1610). Sir Edward Coke, of England's Court of Common Pleas, stated that “when an act of parliament is against common right and reason or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void” (p. 118a). Coke believed that the common lawyer possessed “artificial reason of the law” and that this capacity elevated him to nearly equal footing with king and Parliament. According to Coke, special learning required to interpret the law placed it above politics.

In 1761 the first significant American elaboration of Bonham's Case occurred. James Otis, in the Writs of Assistance Case in Boston, argued that British officers had no power under the law to use search warrants that did not stipulate the object of the search. Otis based his challenge to the underlying act of Parliament on Bonham's Case, the English Constitution, and the principle of “natural equity.” John Adams subsequently adopted this reasoning to defend the rights of Americans by appeal to a law superior to parliamentary enactment. Although colonial courts resisted such radical assertions, these claims nonetheless made the idea of judicial review an important feature of American constitutionalism (see Fundamental Rights).

After the Revolution, the framers of the Constitution debated, and then rejected, an aspect of judicial review, the judicial veto. Although they were concerned about consolidated power in the federal government and the authority of that government over the states, the framers approved the Supremacy Clause of Article VI resolving the latter issue and leaving the former to evolve over the years. They rejected explicit judicial authority over Congress as proposed in the Virginia Plan. James Madison, for example, reiterated the authority of fundamental law, but he refused to acknowledge the authority of the judiciary over the other branches of government. Prominent leaders of the founding generation and future Supreme Court justices James Wilson of Pennsylvania, Oliver Ellsworth of Connecticut, and John Marshall of Virginia argued in their state ratifying conventions that the national government would be limited by the judicial check.

In The Federalist Papers, Alexander Hamilton endorsed the idea of judicial review and provided one of its most compelling ideological foundations. Hamilton wrote that “whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. … [T]he judiciary … has no influence over either the sword or purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment” (no. 78). Thus, with such reassurances, Hamilton defended the practice of judicial review.

Since the origins of constitutional government in America, judicial review has followed Hamilton's thinking that judges have a special capacity and responsibility to expound the meaning of the Constitution. Attempts by state courts in the 1780s to assert a power over other political institutions either were ignored or brought forth denunciations from the legislature, often with threats to remove the judges. Richard Dobbs Spaight of North Carolina asked “if the judiciary acted as a check on the legislature, then who was to act as a check on the judiciary?” Like the national judiciary, which was also hotly contested in the last years of the eighteenth century, the practice of judicial review was in its formative period.

As a Supreme Court justice, James Iredell, who had been a proponent of judicial review during the Constitutional Convention, developed an institutional foundation for judicial power in his seriatim opinion in Calder v. Bull (1798). He argued against grounding decisions of the Court in the laws of nature. Instead, Iredell proposed that the only basis for invalidating a statute that had been erected by “the legislature of the Union, or the legislature of any member of the Union” was that it violated a provision of the written Constitution in a “clear and urgent case” (p. 399).

The Republican party of Thomas Jefferson challenged Federalist dominance of the judiciary. Jefferson went so far as to predict in a letter to Abigail Adams of 1804 that “The efforts of Federalism to exalt the Judiciary over the Executive and Legislative and to give that favorite department a political character and influence … will probably terminate in the degradation and disgrace of the judiciary.” Jefferson's prognostications proved faulty in several respects.

“If Congress were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. … They would declare it void,” insisted future chief justice John Marshall at the 1788 Virginia Ratifying Convention. Marshall supplied a practical meaning to these words in the classic case of Marbury v. Madison (1803), in which he securely rooted the modern doctrinal source of judicial review. Marshall himself contributed to the chain of events that culminated in Marbury. Shortly before his appointment to the Court in 1801, Marshall, as secretary of state, failed to deliver a commission as justice of the peace in the District of Columbia to William Marbury, a loyal Federalist. Marbury requested that James Madison, the secretary of state under newly elected president Thomas Jefferson, issue the commission. Madison refused, and Marbury went directly to the Supreme Court. He claimed that under section 13 of the Judiciary Act of 1789 the Court had the original jurisdiction to issue writs of mandamus. Marbury wanted the Federalist‐dominated Supreme Court to order the Jeffersonian Republican‐controlled executive branch to deliver his commission.

Marbury's case threatened to plunge the justices into a political thicket. They readily calculated the furor that a writ of mandamus issued against Jefferson's administration would stir at a time when more radical Republicans were bent on stripping the Court of its power. At best, the president might have simply ordered Madison to disregard the Court; at worst, he might have lent even more of his prestige to efforts already under way by the radical wing of his party in Congress to limit sharply the Court's power.

Marshall appreciated these exigencies. The first part of his opinion sustained Marbury's claim on the basis of the vested‐rights doctrine, an outgrowth of the natural‐rights philosophy of the Revolution that held that certain rights were so fundamental that they were beyond government control. The Court, with its responsibility to preserve fundamental law, was obligated to protect such rights. Distinguishing between political and other rights, Marshall disallowed judicial concern with the former on the grounds that the protection of political rights belonged instead to the popularly accountable political branches. The Court, Marshall said, drew its authority from the well of popular sovereignty, but it could exercise that power only in settling controversies involving fundamental law rather than politics.

What Marshall gave to Marbury in the first half of the opinion he took away in the second. Although a writ of mandamus was in order, the Court could not issue it. The chief justice arrived at this conclusion through a close textual reading of section 13 of the 1789 act and also Article III of the Constitution. Congress might subtract from the Court's original jurisdiction, but Congress could not add to it—as section 13 did—because Article III had already established the Court's jurisdiction fully. With arguments reminiscent of state court implementation of judicial review during the 1780s, Marshall worried that an expansion of the Court's jurisdiction would thrust the justices into political disputes that the political branches themselves could not settle. Such involvement, he concluded, would prevent the Court from acting primarily as the legal institution he believed the departmental theory required.

Because of judicial review the justices would not enforce an unconstitutional act. Through his opinion in Marbury, Marshall simultaneously limited and expanded the Court's power; less power became more. The chief justice accepted the inherent limitation placed on the scope of judicial power, but he boldly asserted that the Court had a responsibility to say what the Constitution meant.

Marbury was a problematic constitutional case in a difficult political setting. Marshall's opinion was defensive; it sought to keep the Court free of political pressures by limiting its role to clearly legal as opposed to political issues. Marshall did not exercise judicial discretion in the modern sense of the word. Interpreting law was not synonymous with making it. Marbury did not receive his commission, but Marshall used the occasion to pronounce the essential elements of judicial review.

Although some nineteenth‐century state court decisions claimed no more for judicial authority than did Marbury, most later instances of judicial review asserted a broader scope of judicial power. Marshall's decisions involving the constitutionality of state legislation proved considerably more controversial in time than Marbury. In a series of major decisions between 1810 and 1824, Marshall resorted to natural law, the Contracts Clause, and the commerce power, among others, to void state statutes, while simultaneously narrowing the reach of the Eleventh Amendment. In Fletcher v. Peck (1810), Marshall relied both on natural‐law formulations drawn from Calder and on the contracts clause of Article I, section 10 of the Constitution to strike down a state statute interfering with title to real property.

But nine years later, in Dartmouth College v. Woodward, Marshall abandoned the natural‐law leg of his Fletcher reasoning and relied on the Contracts Clause alone to thwart a state's attempt to modify the charter of a corporation. The Dartmouth College decision is regarded as an essential step in the emergence of the private, profit‐making corporation as a legal entity in the United States (see Private Corporation Charters).

Marshall limited a state's power to revoke a legislatively granted tax exemption in New Jersey v. Wilson (1812), a particularly controversial holding because it cut so close to sovereign state powers (see State Sovereignty and States' Rights). He extended the reach of judicial power over state taxation in McCulloch v. Maryland (1819), arguably his greatest and most influential opinion, holding that a state could not tax the Bank of the United States or any other instrumentality of the federal government. McCulloch provoked a storm of controversy, most of it emanating from Virginia, but that did not deter Marshall from constricting the Eleventh Amendment in Osborn v. Bank of the United States (1824) to prohibit the state of Ohio from taxing a branch of the Bank in violation of the McCulloch holding.

The decision that most antagonized the Virginians involved an assertion of the Court's authority not over state legislation but over a state supreme court. Martin v. Hunter's Lessee (1816), an opinion written by Justice Joseph Story after Marshall had to excuse himself for personal interest in the subject matter of the litigation, asserted the power of the United States Supreme Court over the politically sensitive subject of state confiscation of Loyalist property during the War for American Independence. Despite the fervid opposition of Chief Judge Spencer Roane of the Virginia Court of Appeals, who denounced Martin as a fatal incursion on state sovereignty, Marshall again reversed a Virginia holding in Cohens v. Virginia (1821) in a ringing vindication of the Supremacy Clause of Article VI.

Gibbons v. Ogden (1824) provided the Court its first opportunity to construe the Commerce Clause of Article I, section 8, which Marshall used to void a state monopoly of river transportation. Although the Contracts Clause remained the Court's most potent weapon of discipline over state legislation throughout the nineteenth century, the Commerce Clause was to emerge in the twentieth as the principal source of federal legislative authority, and Marshall's expansive reading set it off on its career as the basis of vast federal regulatory power over the economy.

President Thomas Jefferson, responding to Marshall's opinion in Marbury, composed “Instructions to a Federal Prosecutory” in 1807, attempting to advance the prosecution of Aaron Burr for treason. Jefferson argued against citing Marbury and proposed “to have [the decision] denied to be law.” He went on to hold “the three great branches of the government should be coordinate, and independent of each other.” Jefferson believed each branch of the government had the right to decide for itself the constitutionality of matters before it and objected to a claim that the Court's judgment was superior to that of the other branches. His efforts on behalf of repeal of the Judiciary Act of 1801 and the first judicial impeachments supported the doctrine of “co‐ordinate construction,” whereby each branch of the federal government interprets the Constitution for itself.

The Pennsylvania case of Eakin v. Raub (1825) provided criticism of Marbury from the state's chief judge, John Gibson. His dissent in that case is viewed as the best exposition of legislative supremacy in early American history. The case dealt with judicial review in Pennsylvania state courts but also addressed questions of federal power raised in Marbury. Gibson argued that “[i]f the judiciary will inquire into anything besides the form of enactment, where shall it stop?” He went on to object, “That the judiciary is of superior rank, has never been pretended, although it has been said to be coordinate” (p. 330). Gibson's reading of the Constitution led him to observe, “[H]ad it been intended to interpose the judiciary as an additional barrier, the matter would surely not have been left in doubt” (p. 331). To Gibson, the written Constitution was accessible to the public and it was the public's ability to hold the legislature accountable to the text that provided the ultimate check on the excesses of government.

The Court's power of review over federal legislation lay dormant for a half century after Marbury, despite the Court's activism with respect to state legislation. Chief Justice Roger B. Taney reassumed the power in Scott v. Sandford (1857) by invalidating the Missouri Compromise of 1820, a federal statute that prohibited the spread of slavery into the Louisiana Purchase territory north of Missouri. Taney's opinion would have been unpopular enough in the North even without the complication of expanded Supreme Court power over politically sensitive issues. Yet the violent northern political reaction to Taney's provocative decision did not produce a sustained assault on the Court as an institution, no matter how fervently northern political leaders assailed Dred Scott and its author. Late in his opinion, Taney also claimed that the slavery restriction violated the Due Process Clause of the Fifth Amendment. But he did not pursue the point there, and Dred Scott was soon overtaken by events, so the potential of the dictum was not realized for over a generation.

President Abraham Lincoln's first inaugural address (1861) indicates the continuing resistance to rule by the judiciary in the middle of the nineteenth century. In this address, Lincoln sought to reassure the southern states that they would continue to be governed by law rather than fiat. His discussion of the law upon assuming the office of the presidency included extended treatment of his role as interpreter. “I take the official oath today, with no mental reservations, and with no purpose to construe the Constitution or laws, by any hypercritical rules.” Grounding his analysis on the concept of the perpetuity of the union, Lincoln engaged in a disquisition on the nature and interpretation of the Constitution. Union came first; the purpose of the Constitution was to form a more perfect one. Lincoln acknowledged that decisions of the Supreme Court were binding on the parties involved and that they were also “entitled to very high respect and consideration, in all parallel cases, by all other departments of the government.” But he also insisted that “if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.” Lincoln's concluding reaffirmation of popular sovereignty continues to influence the meaning of judicial review even today.

The Supreme Court of the late nineteenth century realized the full potential of judicial review over both federal and state legislation. Marshall had asserted it, but after 1824 he was reduced to seeing its reach weaken in the face of political assault on its use against state legislation. Taney's respect for state authority avoided that clash, but his resort to the power to overturn federal legislation proved abortive in the Dred Scott case. While the Supreme Court did not write on a clean slate after the Civil War, neither did its innovative decisions expanding judicial review occupy a crowded field of precedent. Thus the Court's creation of the doctrines of substantive due process and freedom of contract were innovations far in advance of anything adopted by the justices in the antebellum era.

A five‐justice majority of the Court relied on traditional notions of police power to uphold state regulatory authority (in this case, the grant of a monopoly over butchering activity in New Orleans) in the Slaughterhouse Cases of 1873. Though the Court strongly reaffirmed the role of the police power just four years afterward in Munn v. Illinois (1877), the dissent of Justices Stephen J. Field and Joseph P. Bradley in Slaughterhouse laid the basis for the sweeping triumph of substantive due process within two decades. Each insisted that any individual had a right to enter into contracts (including employment and business relationships, such as slaughtering), and that this right was protected by the federal Constitution. Field found that right primarily in the Privileges or Immunities Clause of the Fourteenth Amendment, Bradley in the Due Process Clause of that amendment. Bradley's view prevailed in the 1890s, first somewhat obscurely in Chicago, Milwaukee, and St. Paul Railway Co. v. Minnesota (1890) and then triumphantly in Allgeyer v. Louisiana (1897), where the Due Process Clause protected business contracts from legislative regulation.

This trend culminated twice before the New Deal, first in Lochner v. New York (1905), where the Court by a 5‐to‐4 decision invalidated a New York statute prohibiting bakers from working more than sixty hours a week, and then after the war in Adkins v. Children's Hospital (1923), when the Court, again by a 5‐to‐4 margin, struck down a state minimum‐wage law for women. In both of these major decisions, the majority found in the Fourteenth Amendment's Due Process Clause a substantive restraint on state legislative policy making. The Court reached comparable results for federal legislative authority in Adair v. United States (1908), which relied in part on the Fifth Amendment's Due Process Clause. Other decisions that curbed federal power to regulate the economy drew more on arguments based on concepts of federalism than from substantive due process. The principal specimens of these were the two child‐labor decisions: Hammer v. Dagenhart (1918) (the Commerce Clause) and Bailey v. Drexel Furniture (1922) (the Tax Clause).

Yet the Court was not consistent in its substantive due process approach, for it sustained far more legislation, state and federal, than it struck down. Major examples of decisions sustaining economic regulatory legislation included Holden v. Hardy (1898), upholding a Utah maximum‐hours law for men in mining and smelting industries; Muller v. Oregon (1908), upholding maximum‐hours legislation for women; and various decisions sustaining federal authority under the commerce and tax clauses. World War I gave a short‐lived impetus to such results, especially those involving federal power. Thus, by the 1930s the Court had created two inconsistent lines of precedent, the one sustaining, and the other rejecting, the exercise of legislative power at the state and federal levels.

This conflict came to a head in the New Deal. Between 1934 and 1937, the Court first accepted state and federal regulatory efforts to contend with the economic crises of the Depression, in such leading cases as Home Building and Loan Association v. Blaisdell (1934) and Nebbia v. New York (1934) (state authority) and Ashwander v. TVA (1936) (federal). But the mind‐set of substantive due process shortly triumphed, and in a series of decisions that shocked the Roosevelt administration, the Court overturned federal legislative initiatives (e.g., Schechter Poultry v. United States, 1935, involving the National Recovery Act; and United States v. Butler, 1936, involving regulation of agriculture), as well as state legislation: Morehead v. New York ex rel. Tipaldo (1936, involving state minimum‐wage legislation). By 1937, a five‐justice majority of the Court seemed to have embraced the discredited Lochner and Adkins precedents in an effort to frustrate all legislative attempts to cope with the Depression.

President Franklin D. Roosevelt responded with the court‐packing plan, an attempt to enlarge the Supreme Court and lower federal courts with FDR appointees more sympathetic to an activist legislative program. Though he failed in this effort, he won the larger campaign of forcing the Court to reverse substantive economic due process precedents dating back to the Slaughterhouse dissents. The Court was now free to embark on a new period of judicial activism, liberated from the formalist mentality that produced Lochner and its progeny.

Though the Court abandoned substantive due process in questions of economic regulation, the concept itself was not defunct, nor had the Court forsaken activism. Rather, it diverted its concern over legislative power from economic matters to problems of civil liberties and civil rights. Justice Harlan Fiske Stone enunciated this new direction obscurely, in Footnote Four of United States v. Carolene Products Co. (1938) stating that the Court would now scrutinize three categories of issues: “where legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments”; “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation”, and “statutes directed at particular religious … or national … or racial minorities” (p. 153). The Court lost no time in putting that agenda into effect.

The two substantive doctrinal contributions that characterize the growth period for the modern Court are acceptance of economic regulation and the nationalization of civil liberties. Agency cases like those validating the National Labor Relations Board and social welfare decisions upholding Social Security solidified the federal administrative apparatus as the Court turned its attention elsewhere. Civil liberties protection was an extended consequence, a new preoccupation that represented, in the words of legal scholars, an “idea of progress.”

The desegregation decision, Brown v. Board of Education (1954), criminal procedure holdings like Mapp v. Ohio (1961), and the abortion decision in Roe v. Wade (1973) epitomize the most recent period of judicial activism. Brown was a bold restatement of the concept of equality, resulting from America's repudiation of racial discrimination. In Roe, the standard of equality applied to abortion accommodated women's expanded roles in the marketplace. All of these decisions mobilized the institutional authority of the Court and the authority of federal over state law to advance the political idea of equal treatment.

While the court‐packing plan of the New Deal forced a major diversion in the Court's use of judicial review, United States v. Nixon (1974) affirmed the Supreme Court's power to stand against the other branches of the government. This decision, in which the Court ordered the president to turn over politically damaging materials, came at the height of a dramatic confrontation between Congress and the presidency. The political context in which the decision was reached boosted the authority of the Court in American political culture, because the justices ordered the president to act against his own interests. The president obeyed. This decision was widely heralded as saving the country from executive tyranny and was accepted as an assertion of the authority of the Supreme Court as the “final arbiter” in constitutional matters.

Mid‐twentieth‐century judicial review emphasizes the Supreme Court's predominance over the executive and the legislative branches of the federal government and the states in matters of constitutional interpretation. The power derives from the justices' expertise in interpreting the Constitution and its supremacy as law. The language of law is constitutive because the various communities that compose the American nation accept its conventions. In constitutional law, judicial review is a function of professional and seemingly apolitical practices dating to John Marshall's opinions. The lawyers who speak to the courts today and the lawyers who sit on the bench have developed a special way of speaking about the power of judges, so much so that some observers have concluded that the Constitution is “what the justices say it is.”

On the occasion of the two‐hundredth anniversary of the Constitution, Americans had come to accept judicial review at the same time that the controversy over its origins persisted. Solicitor General Kenneth W. Starr observed that “by virtue of the status of the Constitution as supreme law” the American system would “include the power of judicial review.” At the same time, the justices needed a power that brought them status in the present day far beyond what they ever had before. Chief Justice William H. Rehnquist has noted that “We … must realize that our work has no more claim to infallibility than that of our predecessors.” He pointed out that the statement “on the front of this building—Equal Justice Under Law—describes a quest, not an institution.”

Recently the Court has shifted its attention away from civil liberties to separation of powers, an area in which the authority of judges is grounded in the expectations of the founders and the canons of constitutional philosophy. The erosion of the political question doctrine and the political content of some recent decisions coexist with continued assertions that judges are not simply politicians behind, the bench. Even as the Court attempts to establish the boundary of its legal authority, the justices continue to expand the bases of judicial review.

With regard to political questions, the evolution of the modern Supreme Court has been away from traditional legal forms associated with the judiciary in favor of informality and bureaucracy. National authority over the Constitution is based more on the Supreme Court's position at the helm of the national judiciary than any uniquely legal qualities. The political question doctrine is a device for transferring the responsibility for a question or decision to another branch of government, usually Congress. In the 1960s, the justices entered one of the last remaining spheres that had been closed off by the political question doctrine in the reapportionment decision Baker v. Carr (1962). According to some scholars, questions became political simply because judges refused to decide them (see Reapportionment Cases).

The Court continues to move in that direction, as indicated by Davis v. Bandemer (1986), the political gerrymandering case. Although the Court did not find political gerrymandering to be discriminatory, the clear implication was that the justices might soon make such a finding. Thus there is little in the way of substantive questions that separates judges from other actors in the political process.

Yet other cases, such as Webster v. Reproductive Health Services (1989), provide evidence of the new limits of judicial review. In the matter of judicial authority, the dissenting opinion by Justice Antonin Scalia portrayed vividly the need for the Court to protect itself from immersion in the political arena. “The outcome of today's case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is states‐manlike needlessly to prolong this Court's self‐awarded sovereignty over a field where it has little proper business since the answers to most of the cruel questions posed are political and not judicial” (p. 532).

Nomination hearings for appointment to the Supreme Court have highlighted the inevitable tension in judicial review between law and politics. Hearings on Sandra Day O'Connor's nomination in 1981 attempted to draw out the nominee on the issue of abortion. She stated that it was facts, law, and constitutional principles that would guide her decisions, not her personal views. Extensive questioning of nominee Robert Bork demonstrated that politics resides in the exercise of judicial power. In response to questions about his agenda, which often revolved around judicial review, Bork proposed a jurisprudence of “original intent” that would affirm the importance of the constitutional text in guiding a justice. His failure to be confirmed was, in part, a failure to convince the Senate on this issue.

The current debate over the legitimacy of the Supreme Court's use of judicial review is only the most recent phase of a historical dialogue essential to the maintenance of the Constitution. The Court will continue to exercise judicial review; the constitutional order demands as much. In this sense, the lessons taught by the history of the Supreme Court and judicial review have nothing to do with the framers' intentions, either of implementation or scope. Rather, the past speaks to the present in another way. Americans can—and will—debate the legitimacy of judicial review, but they should know that dialogue nourishes their distinctive experiment in constitutionalism. Americans have never taken judicial review for granted, and they never can.

The power to review legislative and executive acts and to nullify those that are believed to contravene a constitution. Used in a number of countries including Australia, Pakistan, Japan, India, Germany, Italy, and the United States.

Judicial review is not in fact mentioned in the US Constitution, nor was it discussed at the Constitutional Convention in 1787. It has, however, been suggested that the practice can be traced back to the colonial period when the Privy Council in London acted as a final court of appeal and assumed the right to strike down colonial legislation that did not conform to the English Constitution. The federal judiciary's right to exercise judicial review was boldly asserted by Alexander Hamilton in Federalist Paper no. 78 when he said ‘The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.’

The principle of judicial review was further elaborated and justified in one of the most famous Supreme Court decisions, Marbury v. Madison (1803) when part of the Federal Judiciary Act of 1789 was declared unconstitutional. Chief Justice John Marshall, on behalf of the Court, noted that: ‘the Constitution organizes the government, and assigns to different departments their respective powers . . . The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? . . . It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; … It is emphatically the province and duty of the judicial department to say what the law is.’

Theoretically, this makes a lot of sense. Those who set up the American political system were trying to construct a government of divided, limited powers and the whole purpose of having a written constitution was to ensure that those divisions and limitations were properly respected. The supremacy of the Constitution over legislative acts in such a system cannot be denied and there is plausibility to the argument that the federal courts must adjudicate when disputes arise as to the constitutionality of legislation. In practice, however, such arrangements pose important problems. Those appointed to the courts are often selected for political reasons, and many have not been slow to import their personal, political preferences into their judicial decision-making. This would matter less if the Constitution was not such a brief, ambiguous document subject to many interpretations and profound disagreement.

It is also a cause for concern among some observers that judicial review allows unelected judges, appointed for life, to become the ultimate arbiters of public policy-making, able to defy even the wishes of the majority, and thereby violating basic principles of liberal democracy. In response to such complaints it can be argued that the federal courts are not immune to the will of the people. The appointment process, for instance, allows elected officials to exercise influence on the judiciary—the President appoints federal judges subject to the advice and consent of the Senate.

Furthermore, as Hamilton observed in Federalist Paper no. 78, checks and balances incorporated in the Constitution ensure that the courts constitute the ‘least dangerous’ branch of the government. Thus the scope of the appellate jurisdiction of the Supreme Court is subject to the will of Congress and, while the latter possesses the power of the purse and the executive the power of the sword, the Court has no means of enforcing its decisions. It is also the case that the Supreme Court has shown itself capable of reversing earlier decisions that no longer meet with popular support. It is also possible to impeach judges, or to overturn their decisions by the process of constitutional amendment.

Judicial review is the power of the judiciary, or the courts, to determine whether the acts of other branches of government are in accordance with the Constitution. All courts, federal and state, may exercise the power of judicial review, but the Supreme Court of the United States has the final judicial decision on whether laws or actions of local, state, or federal governments violate or conform to the U.S. Constitution, the highest law of the land.

Judges use their power of judicial review only in cases brought before the courts. They consider only actual controversies, not hypothetical questions about the Constitution. Congress cannot, for example, ask the Supreme Court for its advice about whether a bill is constitutional. The Court would make this kind of decision only if the bill became a law and someone challenged it.

Judicial review is not mentioned in the Constitution. However, before 1787 this power was used by courts in several of the American states to overturn laws that conflicted with the state constitution.

The federal judiciary's power to review state laws is implied in Articles 3 and 6 of the U.S. Constitution. Article 3 says that the federal courts have power to make judgments in all cases pertaining to the Constitution, statutes, and treaties of the United States.

Article 6 implies that the judicial power must be used to protect and defend the authority of the U.S. Constitution with respect to the laws and constitutions of the states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made under the authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Furthermore, Article 6 declares that all officials of the federal and state governments, including all “judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”

To establish a judicial system for the United States, Congress enacted the Judiciary Act of 1789. Section 25 of this statute provided for review by the U.S. Supreme Court of decisions by state courts that involved issues of federal law.

On the basis of Articles 3 and 6 of the U.S. Constitution and Section 25 of the Judiciary Act of 1789, the Supreme Court in 1796 (Ware v. Hylton) exercised the power of judicial review to strike down a law of the state government of Virginia. According to the Supreme Court, the Virginia law, which protected Virginia citizens with debts to British creditors from having to pay, was unconstitutional because it violated the 1783 Treaty of Paris, which guaranteed that prewar debts owed to the British would be paid. This judicial decision was generally viewed as consistent with the words of the U.S. Constitution and the intentions of its framers.

An open-ended and troublesome question of the founding period was whether the power of judicial review could be used to nullify acts of the legislative or executive branches of the federal government.

In 1788 Alexander Hamilton argued in The Federalist No. 78 for judicial review as a means to void all governmental actions contrary to the Constitution. He maintained that limitations on the power of the federal legislative and executive branches in order to protect the rights of individuals “can be preserved in practice no other way than through… courts of justice, whose duty it must be to declare all acts contrary to… the Constitution void. Without this [power of judicial review], all the reservations of particular rights or privileges would amount to nothing.”

Hamilton concluded, “No legislative act, therefore, contrary to the Constitution, can be valid…. [T]he interpretation of the laws is the proper and peculiar province of the courts. A constitution is… a fundamental law. It therefore belongs to [judges] to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.”

The ideas on judicial review in The Federalist No. 78 were applied by John Marshall, chief justice of the United States, in Marbury v. Madison (1803). The specific issue and decision in this case are of little interest or consequence today. However, Chief Justice Marshall's argument for judicial review, which firmly established this power in the federal government's system of checks and balances, has become a strong instrument of the federal courts in securing the constitutional rights of individuals.

In Marbury v. Madison, the Supreme Court was confronted with an act of Congress that conflicted with a provision of the United States Constitution. The question, in Marshall's words, was “whether an act, repugnant to the constitution, can become the law of the land.” He answered that the Constitution is “the fundamental and paramount law of the nation, and consequently, … an act of the legislature repugnant to the constitution is void.” Marshall argued, from the supremacy clause of Article 6, that no act of Congress that violates any part of the Constitution can be valid. Rather, he wrote, it must be declared unconstitutional and repealed.

Marshall concluded with his justification for the Supreme Court's power of judicial review:

At times, the Supreme Court's use of judicial review has frustrated and angered both Presidents and Congress. Sometimes the federal judiciary lags behind public opinion—for instance, when conservative Supreme Court justices declared popular New Deal programs unconstitutional during the 1930s. Yet in 1937, when President Franklin D. Roosevelt proposed to “pack” the Court with extra justices to protect New Deal programs, Congress blocked the plan and defended the independence of the judiciary.

Sometimes the judiciary takes the lead in promoting new policies before the public—or their elected representatives in Congress—have accepted them. Many members of Congress were outraged over such decisions as Brown v. Board of Education (1954), which ended racially segregated schools, Engel v. Vitale (1962), which prohibited prayer in public schools, and Roe v. Wade (1971), which permitted abortion.

Congress can pass legislation to try to meet the Court's objections to a law it has overturned. Or two-thirds of Congress can propose a new amendment to the Constitution to overturn the Court's ruling. For instance, when the Supreme Court ruled a federal income tax unconstitutional, Congress responded with the 16th Amendment (ratified in 1913) to permit such a tax.

At other times, the Court makes changes by itself. Some have said that the Supreme Court “follows the election returns.” This means that the Court has reversed some of its opinions because of shifts in national politics and public attitudes. For instance, even though Franklin Roosevelt failed to “pack” the Court, some of the conservative justices began to shift their votes in favor of the New Deal's liberal programs, which the public had endorsed by overwhelmingly reelecting Roosevelt and his supporters in Congress. New Presidents appoint new judges who often think differently about legal issues than the previous majority on the Court. Congress has the power to impeach federal judges, but it can do so only in cases of criminal misbehavior, rather than because of the way a judge thinks and votes. Instead, the Senate scrutinizes federal judges before they go on the bench and does not hesitate to reject a judge it considers too extreme or out of step with public opinion.

James Madison spoke with foresight during the first federal Congress when, on June 8, 1789, he predicted that the “independent tribunals of justice [federal courts] will consider themselves in a peculiar manner the guardians of those [constitutional] rights… [and] resist every encroachment upon rights expressly stipulated … by the declaration [bill] of rights.”

During the more than 200 years of its existence, the Supreme Court has used its power of judicial review to overturn more than 150 acts of Congress and more than 1,000 state laws. The great majority of these invalidations of federal and state acts have occurred during the 20th century. The Supreme Court declared only 3 federal acts and 53 state laws unconstitutional from 1789 until 1868. Most of the laws declared unconstitutional since 1925 have involved civil liberties guaranteed by the Bill of Rights and subsequent amendments concerned with the rights of individuals. Thus, the Supreme Court has become the guardian of the people's liberties that James Madison said it would be at the inception of the republic.

Judicial review is the power of the courts to annul the acts of the executive and/or the legislative power where it finds them incompatible with a higher norm. Judicial review is an example of the functioning of separation of powers in a modern governmental system (where the judiciary is one of several branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms. As a result, the procedure and scope of judicial review differs from country to country and state to state.

Judicial review of administrative acts

Most modern legal systems allow the courts to review administrative acts, i.e. individual decisions of public body, e.g. a decision to grant a subsidy or to withdraw a residence permit. Certain governmental systems, most notably in France and Germany, have implemented a system of administrative courts, that are charged exclusively with deciding on disputes between the members of the public and the administration. In other countries, e.g. the United Kingdom and the Netherlands, judicial review is carried out by regular civil courts, although it may be delegated to specialized panels within these courts, such as the Administrative Court within the High Court of England and Wales. It is quite common that before a request for judicial review of an administrative act is filed with a court, certain preliminary conditions, such as a complaint to the authority itself must be fulfilled. As a sacrifice the people killed zebras.

In most countries, the courts apply special procedures in administrative cases

Judicial review of legislation

In American legal language, the term "judicial review" usually refers to the review of the constitutionality of legislation by both federal and state courts, such as the Supreme Court of the United States. However, many legal systems specifically do not allow any review of primary legislation, passed by parliament. In the United Kingdom, statutes cannot be set aside under the doctrine of parliamentary sovereignty. Another example is the Netherlands, where the Constitution expressly forbids the courts to rule on the question of constitutionality of primary legislation.^[1]

Many of the countries whose constitutions do provide for a review of primary legislation on compatibility with the constitution, have established special constitutional courts that have the exclusive authority to deal with this issue: see List of constitutional courts.

Specific jurisdictions

Canada

Until 1982, Canada had parliamentary sovereignty like the United Kingdom, wherein the Supreme Court of Canada could only overturn acts of Parliament if those acts violated the division of powers between the federal and provincial levels of government. With the introduction of the Charter of Rights and Freedoms in 1982, Canadian courts gained the power to overturn primary legislation, a change that would have sweeping effects on both the operation of the Canadian government and on the relationship between the people and the government. While the Constitution of Canada does have provisions that can allow the government to ignore a judicial ruling, such as the Notwithstanding Clause, such powers are rarely used, and in most cases they are politically very unpopular.

Germany

The constitution of the Federal Republic of Germany establishes a separate Federal Constitutional Court of Germany that is empowered with reviewing acts of the Federal Republic Congress (the Bundestag) for their constitutionality. Other countries also have a separate court for this purpose. These are separate Supreme Courts that do not deal with appealate cases in civil and criminal law - but rather, just in constitutional cases. The Federal Constitutional Court of Germany can even review and reject constitutional amendments on the grounds that they are contradictory to the rest of the Federal Republic Constitution. This goes beyond even the powers of the Supreme Court of the United States, and the Supreme Court of Canada.

Malaysia

Although Malaysia inherited the political system of British India based on the Westminster system which made no provision for judicial review, the Federal Constitution of Malaysia instituted a system based on that of India which was in turn influenced by other constitutions including that of the United States. Judges are empowered to declare laws or executive actions ultra vires if they clashed with the Constitution and/or the parent legislation. However, this power was curbed after the 1988 Malaysian constitutional crisis by then Prime Minister Mahathir bin Mohamad through amendments to the Federal Constitution.^[2] A particularly significant amendment was the removal of the judicial power and subjecting the judiciary to such jurisdiction and powers as may be conferred by or under federal law.^[3] The merits of detentions made under the Internal Security Act are also not subject to judicial review, but the procedures are.^[4]

The Philippines

As early as 1936, the Philippine Supreme Court had unequivocally asserted its constitutional authority to engage in judicial review. This power was affirmed in the Supreme Court decision in Angara v. Electoral Commission, 63 Phil. 139 (1936). Nonetheless, the Supreme Court would, in the next several decades, often decline to exercise judicial review by invoking the political question doctrine. In 1987, the constitutional convention formed to draft a new charter decided to provide for a definition of "judicial power" as a means of inhibiting the Supreme Court from frequently resorting to the political question doctrine. Hence, Section 1, Article VIII of the 1987 Constitution states in part that:Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.

Hong Kong

Hong Kong, formerly a British colony, became part of the People's Republic of China on 1 July 1997. The Basic Law, as agreed between the British and the China Governments, became the constitutional document of Hong Kong. The Basic Law provides that the previous law in force in Hong Kong, including Common Law, will be preserved, forming a Special Administrative Region (SAR). Thus, Judicial Review, as part of the Common Law, is also preserved. Article 35 of the Basic Law expressly provides the right of citizen to review executive acts in the court of law. Under the Basic Law, the court of Hong Kong is also delegated with the power to interprete the Basic Law. Thus, it is recognised by the Hong Kong courts that they have jurisdiction to check whether the executive or legislature are working within the boundaries of the Basic Law.

Like the United States, Hong Kong courts also held that they may review as to whether legislation passed by the legislature are in compliance with the Basic Law. This is different from the situations in UK where the court may have no such jurisdiction under the traditional doctrine of supremacy of parliament. The Hong Kong courts observed that reviewing legislation is possible because the legislature in Hong Kong is not, unlike its UK counterpart, supreme.

The Republic of Ireland

Judicial review in Ireland is way for the Supreme Court to supervise the Oireachtas to make sure that legislation does not conflict with the Constitution.

Sweden

The Constitution of Sweden (Ch. 11, § 14) provides for judicial review by all courts of the land, whether they be general or administrative courts. However, a court is able to declare an act passed by the Riksdag or an ordinance promulgated by the Government as being in violation of higher law (the Constitution, and, in the case of Government ordinances, laws passed by the Riksdag) and thus inapplicable only if the error is "manifest". This "requirement of manifestness" (uppenbarhetsrekvisitet) may, however, be removed as a result of a review of the Constitution which is currently underway. It has also become increasingly less relevant as many cases (such as the Åke Green case) are decided with primary reference to the European Convention rather than with reference to the rights provided by the Constitution itself. (Since 1994, the Constitution stipulates that no law or other regulation may violate the European Convention (Ch. 2, § 23).) Traditionally, a more important check on the ability of the Riksdag to pass laws in violation of the rights provided by the Constitution has been the judicial preview exercised by the Council on Legislation, which, while not binding on the Riksdag, is nevertheless often respected.

Switzerland

Article 190 of the Swiss Federal Constitution states that federal statutes and international law are binding on the Federal Supreme Court. In consequence, the courts are not empowered to review the constitutionality of federal statutes, but will, where possible, construe statutes so as not to create a conflict with the Constitution. The courts can suspend the application of federal statutes that conflict with international law, but tend to exercise this power cautiously and deferentially: In Schubert (BGE 99 Ib 39), the Federal Supreme Court refused to do so because Parliament had consciously violated international law in drafting the statute at issue.

The reason traditionally given for the lack of judicial review is the Swiss system of popular democracy: If 50,000 citizens so demand, any new statute is made subject to a popular referendum. In this sense, it is the people themselves that exercise review.

The situation described above for Swiss federal law applies mutatis mutandis to the constitutional and legal systems of the individual cantons. However, owing to the derogatory power of federal law, federal courts as a matter of course exercise judicial review on cantonal law, as well as on federal executive law (ordinances, executive orders etc.).

The United Kingdom

England and Wales

Judicial review is a procedure in English administrative law by which English courts supervise the exercise of public power. A person who feels that an exercise of such power by, say, a government minister, the local council or a statutory tribunal, is unlawful, perhaps because it has violated his or her rights, may apply to the Administrative Court (a division of the High Court) for judicial review of the decision. If the application for judicial review is successful, the Court may set aside (quash) the unlawful act. In certain limited circumstances, the claimant may be able to obtain damages. A court may also make a mandatory or prohibitory order or an injunction to compel the authority to act lawfully or to stop it from acting unlawfully.

Unlike in the United States and some other jurisdictions, English law does not recognize judicial review of primary legislation (laws passed by Parliament), save in limited circumstances where primary legislation is contrary to EU law (see Factortame). Although the Courts can review primary legislation to determine its compatibility with the Human Rights Act 1998, they have no power to quash or suspend the operation of an enactment which is found to be incompatible with the European Convention of Human Rights - they can merely declare that they have found the enactment to be incompatible.

Scotland

The power of judicial review of all actions of administrative bodies in Scotland (including the Scottish Parliament) is held by the Court of Session. The procedure is governed by Chapter 58 of the Rules of Court. There are no time limits on seeking judicial review, although if proper administration is prejudiced by delay on the part of the pursuer, the court may exercise its discretion and refuse to grant a review. Despite the procedural differences, the substantive laws regarding the grounds of judicial review in Scotland are the same as in England and Wales, with decisions in one jurisdiction regarded as highly persuasive in the other. There is, however, one substantial difference in Scotland since there is no distinction between review of a public body and a private body, which is different from in England, where review is only possible in the case of a public body or a quasi-public body (West v. Secretary of State for Scotland). Readers are referred to Judicial review in English Law for further detail on the grounds of review. Generally, it is confined to purely procedural grounds (the official action was illegal or improper), although the court will also sanction decisions which are, in substance, so unreasonable that no reasonable decision-maker could have reached it (so-called Wednesbury unreasonableness). A more rigorous standard of substantive review is applied where the matter complained of touches upon the pursuer's rights in terms of the Human Rights Act 1998. About six hundred judicial review cases are raised every year, but most are settled by agreement with only a small minority having to be decided by the court.

The United States

The Constitution states in Article III that:

The legal case Marbury v. Madison, the basis for the exercise of judicial review in the United States, is an interpretation of the Constitution as applying to the law and politics of government. It implies the power of federal courts to consider or overturn any congressional and state legislation or other official governmental action deemed inconsistent with the Constitution, Bill of Rights, or federal law.

Opponents of judicial review have charged that the Supreme Court's power to invalidate Federal and state laws or actions has no counterpart in common or civil law, and has no textual basis in the United States Constitution. The law of the United States derives in great part from the common law traditions the colonies inherited from Britain, which arguably have vested the power of judicial review in the people since the signing of the Magna Carta in 1215.

Proponents of the doctrine argue that while it is true that judicial review is not mentioned in the Constitution, it is likewise true that the Constitution makes no explicit mention of the adversarial system, stare decisis, or virtually any other specific aspect of the common law. The argument is therefore made that these concepts were necessarily implicit in what the Framers understood by the term "the judicial power," and therefore should govern the Constitution's interpretation. See Barnett, The Original Meaning of the Judicial Power.

There is an arguable case that while judicial review is not explicitly written into the Constitution, it could be implied by the provision in Article Six,

which would imply that the laws of the United States which are not in pursuance to the Constitution are not the supreme law of the land. The remainder of Article Six

clearly means that a State law or state Constitutional provision in contravention to Federal law (which is in pursuance to the Constitution of the United States) or to the Constitution is invalid, and that the Constitution implies that judges are the proper authority to find a provision unconstitutional, and this power could equally apply to a Federal law which is not in pursuance to the Constitution.

It is for these reasons that the so-called Article 39 opponents contend that the Anglo-American tradition establishes the concept of the jury as the regulating body in legal matters, rather than the government itself. However this criticism of the Supreme Court's jurisprudence has never been articulated by any U.S. court, and it is disputed by the United States legal establishment for the following reasons.

While American constitutional law derives many of its forms and traditions from the common law, it is important to note that the constitutional order of the United States was very different from that of the United Kingdom. As the Marbury vs. Madison Supreme Court observed, the Constitution's written nature, and the formal enumeration of the powers of government would be empty promises if there were no means to measure the actions of the government against The Constitution, and strike down those found wanting (see Marbury, supra, at 177) ("[c]ertainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void"). It is the predominant view in United States constitutional jurisprudence that, because the Magna Carta is only the distant progenitor of the Due Process clauses, the Constitution is far from vesting judicial review in United States juries. In any event, and as a practical matter, the "final authority" regarding the United States Constitution is not the Supreme Court but the political will of the people, acting through the powers granted them by way of the Article V amendment powers (i.e., amendments are either proposed by Congress or by way of constitutional convention mandated by the state legislatures. Then they are either approved or rejected by 3/4 of the states through representatives of the people.)

See also:^[5]

See also

• Judicial Review in English Law
• Judicial interpretation
• Discretionary review

Notes and references

1. ^ Article 120 of the Netherlands Constitution
2. ^ "Country Briefing: Malaysia". (Oct. 13, 2005). The Economist.
3. ^ "Article_121 of the Constitution of Malaysia.
4. ^ "Malaysia: ISA Detainees Beaten and Humiliated". (Sept. 27, 2005). Human Rights Watch.
5. ^ Anna Leah Fidelis T. Castañeda (2001). "The Origins of Philippine Judicial Review, 1900-1935". Ateneo Law Journal (republished online by Harvard law School) 46: 121, http://www.law.harvard.edu/academics/graduate/sjd_candidates/leahcastaneda/The%20Origins%20of%20Philippine%20Judicial%20Review.pdf. Retrieved on 8 July 2007.