Judicial review in the United States is generally understood to be the authority of a court to review legislative enactments and actions by governmental officials, and, if they are inconsistent with the constitution, to invalidate the challenged acts. A key factor that undergirds the notion of judicial review is acceptance of a hierarchy of laws and that those on the lower rungs must not conflict with those on the higher ones. Higher laws will always prevail over lower ones, and the Constitution is the highest law in the land.
Judicial review is typically regarded as an innovation in political institutions that had its origins in the United States, but there are earlier examples elsewhere of higher tiered laws gaining recognition as constraining monarchs and parliaments. English Lord Chief Justice Coke, speaking in Dr. Bonham’s Case in 1610, is frequently cited for his statement 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.’’ Judges and the judicially crafted common law or the higher law of right and reason could control acts of the legislature. Sweden in the seventeenth century may not have asserted that judges could police constitutional infringements, but the fundamental law or constitution was seen as holding a place above all other laws, everlasting and unchangeable.
Judicial review cannot be found explicitly mentioned in the U.S. Constitution, but there is ample evidence that the authors of the Constitution understood and assumed its place. There are multiple allusions to such judicial authority recorded in the constitutional debates, but one example demonstrates the assumptions of the Framers. When a proposed Council of Revision that could revise unwise laws passed by Congress was debated, Elbridge Gerry argued that the judiciary should not be represented on the council since, as Max Farrand quotes in The Records of the Federal Convention of 1787, the judiciary ‘‘will have a sufficient check against encroachments on their own department by their exposition of the Laws, which involved a power of deciding on the constitutionality.’’ The Council of Revision did not survive into the final constitutional text, but the expectation that the courts had the authority to police constitutional violations was clearly recognized. That understanding was echoed by the authors of the Federalist Papers. In Federalist No. 78, Alexander Hamilton unambiguously asserts that ‘‘no legislative act, therefore, contrary to the Constitution, can be valid,’’ and discusses the rights of the courts to pronounce such legislative acts void.
Judicial review was, in other words, presumed to be a feature of the Constitution. It was not, however, asserted for the purpose of invalidating an act of Congress until 1803 in the famous case of Marbury v. Madison. William Marbury, who was a Federalist Party appointee to a newly created justice of the peace court in Washington, D.C., did not receive his commission before the Federalist Party turned over power to the Jeffersonian-Republicans after the election of 1800. He sued under the original jurisdiction of the U.S. Supreme Court for a writ of mandamus to order the new Secretary of State James Madison to deliver the commission to him. Marbury’s suit for the writ was filed in the Supreme Court, because Section 13 of the Judiciary Act of 1789 provided that the Court could issue such a writ under its original jurisdiction. Without belaboring the technicalities that led Chief Justice John Marshall to deny Marbury the writ, the Chief Justice declared Section 13 of the Judiciary Act of 1789 unconstitutional and therefore invalid. Mr. Justice Marshall’s tour de force opinion declared that Constitution was a ‘‘superior paramount law, unchangeable by ordinary means’’ and that ‘‘a legislative act contrary to the constitution is not law.’’ The supremacy clause in Article VI of the Constitution clearly supported that position. The trickier question revolved around who had the power to make that determination, but Chief Justice Marshall boldly declared the ‘‘it is emphatically the province and duty of the judicial department to say what the law is .. . . If two laws conflict with each other, the courts must decide on the operation of each.’’ Thus, Marbury v. Madison became the first instance in which judicial review was used in the United States to invalidate an action of Congress.
Marshall’s assertion of the power of judicial review was not universally accepted. A dissenting opinion by Justice John Bannister Gibson of the Pennsylvania Supreme Court in Eakin v. Raub is usually cited as embodying the major arguments against judicial review. Gibson argued that the judicial branch’s power to review legislation is restricted solely to the form of enactment, because the legislative branch represents the sovereign people and holds the power to construe the constitution and to determine the constitutionality of its own enactments. The legislature can be held accountable by the real sovereign, the people, at the ballot box and through public opinion. Should it act wrongly, its errors can be corrected by the public’s insistence on repeal of the offending law. The judiciary is subject to no such remedy, and ‘‘the judiciary is not infallible.’’
The Supreme Court did not declare another congressional enactment unconstitutional until 1857, in Dred Scott v. Sandford. Scott was a Missouri slave who had accompanied his owner to military posts in Illinois and other federal territories north of the line demarcating slave from nonslave states, and, therefore, alleged that his presence in free states released him from slavery. In a highly controversial decision, both then and now, Chief Justice Roger Taney wrote for the seven-justice majority. He denied that Scott had standing to sue because he was Negro and a slave and, subsequently, not a citizen. Taney further declared the Missouri Compromise unconstitutional. Many observers claim that this decision hastened the onset of the Civil War, and it was overturned only after that war by the Thirteenth Amendment that abolished slavery.
The Supreme Court’s exercise of judicial review has been more sparse in some eras than in others and has not yet reached 175 congressional laws. In some time periods, the Court’s actions have been more controversial than in others. For example, the Court annulled some forty-seven U.S. statutes between 1874 and 1930, but these did not typically touch on topics that gave rise to significant political ire. However, in the first years of the Hughes Court (1930–1940) a handful of laws central to President Franklin Roosevelt’s New Deal were invalidated, and there was a hue and cry about undemocratic judges, ‘‘nine old men,’’ blocking the will of the majority. Indeed, the President called for saving ‘‘the Constitution from the Court.’’ The President proposed to alter the composition of the Court through a ‘‘court-packing’’ plan, whereby he would be allowed to appoint one additional justice for each justice JUDICIAL REVIEW 864 seventy years of age or older, which would have increased the Court from nine justices to fifteen. The ‘‘court-packing’’ plan never was realized, but a majority of the Court began to view New Deal legislation favorably.
The Warren Court (1953–1969) was highly controversial because of its invalidation of laws on racial segregation, the rights of the criminally accused and church and state relations, but most of those involved state laws. In its fourteen years, the Warren Court overruled only twenty-five federal laws, but 150 state ones. The more moderate Burger Court declared far more congressional enactments unconstitutional (thirty-four) and almost 200 state laws. The Rehnquist Court (1986–present) through the end of 2003 had invalidated more than thirty federal laws and a much smaller number of state ones. In the more recent years of the Rehnquist Court, many of the federal laws that were struck down involved, according to a majority of the Court, encroachments into the sovereign immunity of the states protected by the Eleventh Amendment. Little political reaction followed.
Although judicial exercise of judicial review remains controversial in the United States, it is accepted as a reality. Lawyers, politicians, and scholars complain of judicial activists who fail to show proper deference to the democratically elected legislative branch, when programs they favor fall victim to judicial review. The labels of judicial activism and judicial restraint were created to describe the proper role of judges in their relationship with the other branches of government, but now have become laden with ideology. Champions of judicial review cite the importance of an unelected body to uphold the law, particularly when protecting the rights of minorities. Detractors refer to judges who impose their will over that of Congress as super-legislators. The debate will continue, undoubtedly, although its contours will alter as different issues are adjudicated before the nation’s highest court.
Despite the debates that the exercise of judicial review breeds in the United States, it has been widely imitated abroad. The form and substance has varied dramatically, though, as the practice has been transplanted elsewhere. For example, another form of judicial review has emerged in Great Britain since the middle of the twentieth century, one that is quite different from understandings in the United States. ‘‘Judicial review’’ in the British context refers to a review by courts of the legality, not the constitutionality, of a decision by an administrative authority rather than a legislative enactment. It is a review, not an appeal, and does not extend to a decision on the merits of the complaint. It is a check on the executive rather than on the legislature.
What Americans call judicial review is more commonly known as constitutional review, particularly in Europe. Constitutional review was largely rejected on the European Continent until after World War II, because it was considered to interfere with parliamentary sovereignty. The exception was a brief experiment in Austria before the German occupation in the early twentieth century. The Austrian form of review was designed by jurisprudential scholar Hans Kelsen and involved what he called ‘‘centralized judicial review.’’ Kelsen saw the U.S. system of judicial review as a decentralized system, whereby any court could find a law unconstitutional even though the Supreme Court has the final say. Kelsen devised a system whereby a constitutional court was created separate from the rest of the judiciary. When a question of an unconstitutional law arose in the course of deciding a case, the court hearing the controversy would refer the question to the constitutional court for a definitive answer as to the constitutionality of the law or the proper interpretation of the constitution. After World War II, variations on Kelsen’s constitutional court were introduced in Germany and Italy and later in the European Union’s Court of Justice and in Spain.
Another variation was introduced in France in the 1958 Constitution of the Fifth Republic. A Constitutional Council, staffed by politicians rather than lawyers or judges, resides within Parliament. Once a law has passed, both chambers of the French Parliament, certain office-holders, or a percentage of members of either chamber can refer the law in question to the Constitutional Council for a determination of constitutionality before it is enacted into law. The Council has emerged as a tool of the parliamentary opposition but preserves at least a veneer of parliamentary sovereignty. Once a law has been duly enacted and signed by the President of the Republic, it cannot be declared unconstitutional.
Judicial institutions to review the constitutionality of laws that are more like the U.S. Supreme Court have been created in Japan, Portugal, and some of the new democracies of Central Europe and in a number of Latin American countries.
Although judicial/constitutional review will continue to be a controversial institution in democratic systems, many nations have obviously come to accept that democratically elected legislators need the check that it provides, particularly to protect minorities or unpopular positions. Judges exercising judicial review maintain the integrity of a hierarchy of laws, in which the constitution rates above normal laws and lend a permanence to constitutional structures; they check not only the legislature but also executives.
MARY L. VOLCANSEK
References and Further Reading
Cases and Statutes Cited