Judicial review

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US Supreme Court Building

Judicial review is a legal term to describe the ability of the courts to subject executive and legislative actions to review (and possible invalidation). In this light, judicial review amounts only to a negative power.

In some countries, only executive powers can be judicially reviewed by a courts - in the United Kingdom and New Zealand for instance, the doctrine of parliamentary supremacy means that legislation cannot be set aside. In many countries however, notably in the US, the courts play a role in determining the constitutionality of legislation.

Review of legislation in the United States

The authority of the federal courts to declare law enacted by Congress unconstitutional.[1] Chief Justice Marshall established this doctrine in Marbury v. Madison

It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.
If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

In this declaration, for example, if a law is unconstitutional then courts should not enforce it. Since all laws and all departments are inferior to the Constitution, none should be continued which are contrary to it. This is not to be confused with additional unjustified power taken by the judiciary for itself that is known as judicial supremacy or judicial activism, which was not the result of the Marbury ruling.

In the 1783 ruling Commonwealth v. Caton, George Wythe wrote: "If the whole legislature, an event to be deprecated, should attempt to overleap the bounds, prescribed to them by the people, I, in administering the public justice of the country, will meet the united powers, at my seat in this tribunal; and, pointing to the constitution, will say, to them, here is the limit of your authority; and, hither, shall you go, but no further."

John Marshall was a student of Wythe's while he attended law school.

Review of executive decision making

In Commonwealth countries, decisions made by Ministers and other members of the executive branch can be subjected to a judicial review. The court will check to ensure that the decision maker has not acted ultra vires (beyond their authority), with any procedural impropriety, or in breach of any legitimate expectation. The courts will not impose their own decision, but rather will ensure that the process that the decision maker followed was legitimate.

Jefferson's response

Thomas Jefferson wrote of the doctrine of judicial review in 1804:

The opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature & executive also in their spheres, would make the judiciary a despotic branch.[2]

He wrote on the topic for many years. In 1820 he wrote:

You seem ... to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privileges of their corps.[3][4]

He was of the belief that because judges are not elected, this kind of power would amount to a judicial tyranny,[5] and he was of that belief for the rest of his life.

See also