Omar Bennett
Judicial review is the legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a state constitution, or the United States Constitution. While the US Constitution does not explicitly define the power of judicial review, the authority for judicial review has been inferred from its structure, provisions, and history. The first American decision to recognize the principle of judicial review was Bayard v. Singleton, decided in 1787 by the Supreme Court of North Carolina's predecessor. Judicial review is one of the distinctive features of United States constitutional law, and it is considered to be fundamental to the US system of government.
| Characteristics | Values |
|---|---|
| Power of Judicial Review | The power of federal courts to test federal and state legislative enactments and other actions by the standards of what the Constitution grants and withholds |
| Landmark Decisions | Hylton v. United States (1796), Marbury v. Madison, Bayard v. Singleton (1787) |
| Opposition | Mr. Mercer, Mr. Dickinson |
| Supporters | Hamilton, John Marshall |
| Scope | All federal and state courts in the US have the power to entertain claims of unconstitutionality |
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What You'll Learn
Judicial review is not mentioned in the US Constitution
Judicial review is a fundamental idea in the US system of government. It refers to the power of the judiciary to review and invalidate the actions of the executive and legislative branches. While it is a distinctive feature of US constitutional law, the US Constitution does not explicitly mention or define the power of judicial review.
The absence of an explicit reference to judicial review in the Constitution has sparked debates and challenges to its legitimacy. However, the authority for judicial review has been inferred from the structure, provisions, and history of the Constitution. The power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI of the Constitution.
The concept of judicial review was already established at the time of the Founding. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters. Several instances of state court invalidation of state legislation as inconsistent with state constitutions were also known to the Framers.
During the debates in the Constitutional Convention, practically all Framers who expressed an opinion welcomed the existence of court review of the constitutionality of legislation. James Wilson, for example, asserted in the Pennsylvania ratifying convention that federal judges would exercise judicial review:
> "If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void. For the power of the Constitution predominates. Anything, therefore, that shall be enacted by Congress contrary thereto will not have the force of law."
The only expressed opposition to judicial review came from Mr. Mercer, who disapproved of the idea that judges should have the authority to declare a law void. He was seconded by Mr. Dickinson, who was unsure what alternative method to employ.
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Landmark cases
The UK's constitution is unwritten, encompassing landmark statutes, such as the Bill of Rights of 1689, and unwritten rules of constitutional practice. The residual powers of the monarch and the relationship between the monarch and Parliament are governed by these unwritten conventions.
Miller litigation
The Miller litigation, specifically the second Miller case, is considered a significant decision on a highly charged issue. It pertains to the prorogation and dissolution of Parliament, which are matters of high policy and high political controversy. The Supreme Court's decision to advise Her Majesty to prorogue Parliament for five weeks was deemed unlawful, stepping into matters that the UK courts have historically refrained from addressing. This case strained the principle of Parliamentary sovereignty and introduced uncertainty into the constitutional balance between Parliament, the Government, and the Courts.
Privacy International
The Privacy International case also raised concerns about the UK Supreme Court's judgment, as it involved a decision by Parliament to limit the judicial review jurisdiction of the Courts. This case relates to the Regulation of Investigatory Powers Act 2000 and the balance between assessing the validity of executive agency actions and interpreting the law.
Adams, Evans / UNISON
Other cases, such as Adams, Evans/UNISON, and a few others, have also tested the shared understanding of the constitutional balance between Parliament, the Government, and the Courts. These cases have led to an increase in political litigation, seeking to use the court system and judicial review to achieve political goals.
Marbury v. Madison
While this case pertains to the United States, it is worth mentioning as it is a landmark decision that established judicial review in the US. The Supreme Court struck down an act of Congress as unconstitutional, with Chief Justice John Marshall famously stating, "It is emphatically the duty of the Judicial Department to say what the law is."
Bayard v. Singleton
This was the first American decision to recognize the principle of judicial review in 1787 by the Supreme Court of North Carolina's predecessor. The North Carolina court treated the state constitution as the governing law to be interpreted and applied by judges.
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Judicial review in other countries
Judicial review is a process that allows the judiciary to examine the actions of a government's executive, legislative, and administrative arms to determine whether they are consistent with the constitution. While the concept of judicial review is not explicitly mentioned in the US Constitution, it has been a part of the American tradition and has influenced other countries' legal systems.
In France, the Cour de Cassation, the highest court of criminal and civil appeal, lacks the power of judicial review. Instead, a constitutional council called the "Conseil Constitutionnel" was established with a mixed judicial-legislative character. Germany, Italy, and South Korea have established special constitutional courts, while India, Japan, and Pakistan have set up supreme courts to conduct judicial reviews, emulating the US model.
Following World War II, many countries felt pressured to adopt judicial review due to the influence of American constitutional ideas. The concentration of power in the executive branch, unchecked by other agencies, contributed to the rise of totalitarian regimes in pre-World War II Germany and Japan. This realization led to a shift toward endorsing judicial review as a mechanism to balance and check the power of elected officials.
The United States employs a mixed system of judicial review, with various courts and specialized tribunals reviewing administrative decisions. Similarly, the United Kingdom conducts judicial reviews through regular civil courts or specialized panels within these courts, such as the Administrative Court within the High Court of England and Wales.
The global expansion of constitutional judicial review has been significant, with over 100 countries specifically incorporating it into their constitutions by the early 21st century. This expansion reflects the dominant feature of modern constitutionalism, where various models, structures, and forms of judicial review have emerged to supervise and guarantee the effective implementation of constitutions.
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The Framers' opinions
The Framers were aware of the concept of judicial review, which was already established at the time of the Founding. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters. There were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions. Practically all of the Framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation.
However, there were some Framers who opposed the idea of judicial review. Mr. Mercer disapproved of the doctrine that judges should have the authority to declare a law void. He believed that laws ought to be well-made and then uncontrollable. Mr. Dickinson shared similar views and thought that no such power to set aside the law should exist.
The Constitution has been described as "a bundle of compromises," and during the four months the delegates spent putting it together, there were some strong disagreements. Some had walked out of the convention, and three refused to sign the finished document. Benjamin Franklin argued in support of the Constitution, while George Mason argued against it and refused to sign.
One of the Framers commented on the last day of the convention:
> "No man's ideas were more remote from the plan than [mine are] known to be; but is it possible to deliberate between anarchy... on one side, and the chance of good to be expected from the plan on the other?"
Another acknowledged their disapproval of certain parts of the Constitution but expressed their willingness to respect the judgment of others:
> "I confess that there are several parts of this Constitution which I do not at present approve.... [But] the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others.... In these sentiments...I agree with this Constitution with all its faults, if they are such; because I think a general Government necessary for us."
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Judicial review and the Separation of Powers doctrine
Judicial review is a process that allows the judiciary to review and potentially invalidate the actions of the executive and legislative branches of government. It is a key feature of the US Constitution, despite not being explicitly mentioned in the document. The power to declare laws unconstitutional has been inferred from Article III and Article VI of the Constitution. This power of judicial review is a crucial check on the powers of the other two branches of government, ensuring that they do not exceed their authority and adhere to the Constitution.
The concept of judicial review was already established at the time of the US Founding. The Framers of the Constitution were aware of this concept and some favoured granting courts this power. The first American decision to recognise the principle of judicial review was Bayard v. Singleton in 1787, decided by the Supreme Court of North Carolina's predecessor. Notable early state cases involving judicial review include Commonwealth v. Caton (Virginia, 1782), Rutgers v. Waddington (New York, 1784), and Trevett v. Weeden (Rhode Island, 1786).
The US Supreme Court has handed down several landmark decisions that confirmed the inferred constitutional authority for judicial review. In 1796, Hylton v. United States was the first case involving a direct challenge to the constitutionality of an act of Congress. The first Supreme Court decision to strike down an act of Congress as unconstitutional was Marbury v. Madison, which established the judiciary's power to interpret and apply the law independently.
The doctrine of separation of powers, introduced by Montesquieu, is based on the idea that no branch of government should exert power over another without due process. Each branch should have checks and balances on the others, creating a regulative balance. The US system of government, with its three separate branches, was designed with this principle in mind. The judiciary's power of judicial review is a crucial aspect of maintaining this balance and preventing the arbitrary use of governmental power.
However, when engaging in judicial review, courts must be cautious not to violate the Separation of Powers doctrine themselves. While judges interpret the law and decide which laws violate the Constitution, they must not usurp the legislative duty to create the law. This principle is essential in maintaining the independence and impartiality of the judiciary, as sworn under their oath.
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Frequently asked questions
Judicial review is the power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and determine whether they are consistent with the constitution.
An unwritten constitution is one that is not codified into a single document, but rather is made up of various sources such as customs, traditions, court decisions, and statutes.
Judicial review is often associated with written constitutions, as it involves interpreting and applying the provisions of a constitution. However, the concept of judicial review can also exist in countries with unwritten constitutions, where courts interpret and apply constitutional principles derived from sources other than a single written document.
Some examples of judicial review in countries with unwritten constitutions include the United Kingdom, where the Supreme Court interprets and applies constitutional principles derived from sources such as statutes, common law, and conventions, and India, where the Supreme Court of India exercises judicial review in a similar manner to the United States, despite having an unwritten constitution.
Judicial review in the context of an unwritten constitution can provide clarity and consistency in the interpretation of constitutional principles, ensure that government actions are consistent with established legal principles, and protect the rights and freedoms of citizens by holding the government accountable to constitutional standards.
