Judicial Review: Can Laws Face This Test?

Judicial review is a process that allows the judiciary to review the actions of the executive, legislative, or administrative branches of the government to determine whether they are consistent with the constitution. In the United States, the federal judiciary has the power to declare laws unconstitutional, which is derived from Article III and Article VI of the U.S. Constitution. This power of judicial review acts as a check on the powers of the other branches of government. While the concept of judicial review has been adopted by many countries, the procedure and scope may differ between and within countries, depending on their legal systems and theories of democracy.

Judicial review and the separation of powers

The concept of judicial review is integral to the separation of powers. The US Constitution establishes three separate but equal branches of government: the legislative branch (which makes the law), the executive branch (which enforces the law), and the judicial branch (which interprets the law). The separation of powers was designed to prevent one branch of government from becoming too powerful and to create a system of checks and balances.

The judiciary's role in checking executive power has been the subject of debate, with some arguing that it is too weak to effectively check the executive, while others claim that it has actively facilitated the expansion of executive power. However, federal courts have subjected a significant set of executive actions to judicial oversight, a practice known as "enforcement lawmaking." This has led to an expansion of judicial power, with courts leveraging their case-management powers to force transparency and accountability from the executive branch.

The power of judicial review allows courts to examine the actions of the legislative, executive, and administrative arms of the government and determine whether they are consistent with the constitution. If an action is found to be inconsistent, it is declared unconstitutional and null and void. While the US Constitution does not explicitly mention judicial review, it is believed that the federal courts have the power to declare laws unconstitutional. This power was famously asserted by John Marshall, the fourth chief justice of the United States, in Marbury v. Madison (1803).

The separation of powers doctrine was highlighted in the 2017 case of Gabler v. Crime Victims Rights Bd., where an executive agency reviewed and sanctioned a judge's exercise of discretion. The Wisconsin State Supreme Court held that the creation of an executive branch entity with the authority to pass judgment on a judge's core judicial powers violated the separation of powers doctrine and infringed on the exclusive province of the judiciary.

The interplay between judicial review and the separation of powers is a dynamic and evolving aspect of constitutional law, with ongoing debates and case law shaping its interpretation and application.

Judicial review in civil law and common law systems

Judicial review can be understood in the context of two distinct but parallel legal systems: civil law and common law. These two systems have different views on judicial review. In the common-law tradition, judges are seen as sources of law, capable of creating and rejecting legal principles. Common-law systems are more likely to utilize judicial review. In the United States, for example, all courts have the power to review the constitutionality of laws. However, some common-law jurisdictions, like the United Kingdom, do not have judicial review of primary legislation due to a strong attachment to legislative supremacy.

In civil law systems, judges are seen solely as applicators of the law, with no power to create or destroy legal principles. Civil law countries like France, Germany, and Ethiopia have special administrative courts that review the decisions of the administrative branch of the government. These countries may also have constitutional councils or courts that review the constitutionality of administrative decisions.

The development of judicial review in different countries has been influenced by various factors, including the desire to establish a system of checks and balances to prevent the concentration of power in the executive branch, as well as the adoption of constitutional ideas from the United States after World War II. By the early 21st century, more than 100 countries had specifically incorporated judicial review into their constitutions.

It is worth noting that the term "judicial review" can have different nuances in different countries. For example, in Australia, it generally refers to the review of the lawfulness of executive and public service actions, while the compatibility of laws with the constitution is known as a constitutional challenge.

Judicial review in the US

Judicial review in the United States refers to the power of the courts to examine the actions of the legislative, executive, and administrative arms of the government and determine whether they are consistent with the US Constitution. If a law is deemed inconsistent with the Constitution, it is declared unconstitutional and considered null and void. This doctrine of judicial review extends not only to federal actions but also to certain acts of individual state governments.

The concept of judicial review in the US is not explicitly mentioned in the US Constitution but is a product of judicial construction. It is believed to have originated with the assertion by John Marshall, the fourth chief justice of the United States (1801-1835), in Marbury v. Madison (1803). In this case, Marshall claimed that the Supreme Court of the United States had the authority to invalidate legislation enacted by Congress, even though there was no express warrant for this assertion in the text of the Constitution. The Supreme Court's ruling and the absence of an effective political challenge established the principle of judicial review.

The US Supreme Court has played a significant role in shaping judicial review. In Fletcher v. Peck (1810), the Court struck down a state statute as unconstitutional due to its violation of the Contract Clause in the Constitution. In Martin v. Hunter's Lessee (1816), the Court enforced the power of the Supremacy Clause, asserting its authority to review state court decisions involving the interpretation of federal law or the US Constitution. The Court justified this power based on the need for a uniform interpretation of federal law across all states.

The federal courts' power of judicial review has been a topic of debate among delegates at the Constitutional Convention. Some argued that federal judges, through their power to declare laws unconstitutional, already had a check against legislative encroachment. Others believed that including federal judges in the law-making process could impair their objectivity when deciding on the constitutionality of those laws. Despite these differences, the federal judiciary's role in reviewing the constitutionality of statutes is generally accepted.

Judicial review in other countries

Judicial review is the power of the courts in a country to examine the actions of the legislative, executive, and administrative arms of the government to determine whether such actions are consistent with the constitution. If the actions are inconsistent, they are declared unconstitutional and null and void.

After World War II, many countries felt pressured to adopt judicial review due to the influence of US constitutional ideas, especially the notion of checks and balances in a democratic government. By the early 21st century, over 100 countries had incorporated judicial review into their constitutions.

In countries that have inherited the English common law system, judicial review is generally conducted by courts of general jurisdiction rather than specialised courts. Examples include Australia, Canada, and the United States. In the US, federal and state courts at all levels can review and declare the "constitutionality" of legislation through judicial interpretation within their jurisdiction.

Some countries, like France and Germany, have established administrative courts to resolve disputes between citizens and the administration. In contrast, the United States and the United Kingdom utilise regular civil courts for judicial review, although they may delegate to specialised panels within these courts.

Russia, the Czech Republic, and Austria have adopted a mixed model where courts at all levels can review primary legislation and declare its constitutionality. However, in Russia, the decision about a law's adequacy to the constitution only binds the parties to the lawsuit.

The history of judicial review

Judicial review is the power of the courts to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution. If actions are deemed inconsistent, they are declared unconstitutional and null and void. While the US Constitution does not explicitly define the power of judicial review, the authority for judicial review has been inferred from the structure, provisions, and history of the Constitution.

The concept of judicial review was already established during the Founding of the United States. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters. Several instances were known of state court invalidation of state legislation as inconsistent with state constitutions. Practically all of the framers who expressed an opinion on the issue during the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation.

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. The North Carolina court and its counterparts in other states treated state constitutions as statements of governing law to be interpreted and applied by judges. Notable state cases involving judicial review include Commonwealth v. Caton (Virginia, 1782), Rutgers v. Waddington (New York, 1784), and Trevett v. Weeden (Rhode Island, 1786).

In 1796, Hylton v. United States was the first case decided by the US Supreme Court involving a direct challenge to the constitutionality of an act of Congress, the Carriage Act of 1794, which imposed a "carriage tax". The Court performed a judicial review of the plaintiff's claim that the carriage tax was unconstitutional. Two landmark decisions by the US Supreme Court served to confirm the inferred constitutional authority for judicial review in the United States. Since Marbury v. Madison, judicial review has become a core feature of American constitutional law.

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