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Judicial review is now well established as a cornerstone of constitutional law. As of September 2017, the United States Supreme Court had held unconstitutional portions or the entirety of some 182 Acts of the U.S. Congress, the most recently in the Supreme Court's June 2017 Matal v. Tam and 2019 Iancu v.
The Supreme Court first formally embraced the doctrine of judicial review in the 1803 case Marbury v. Madison. 8. Since Marbury, judicial review has become a core feature of American constitutional law. 9.
- Overview
- Judicial review in the United States
- Judicial review outside the United States
Because judicial review in the United States has been a model for other countries, it is appropriate to devote some discussion to it and to the body of constitutional law it has produced. Despite its overwhelming importance, judicial review is not explicitly mentioned in the U.S. Constitution; indeed, it is itself a product of judicial construction. In Marbury v. Madison (1803), the Supreme Court ruled that, because the Constitution clearly states that it is the supreme law of the land and because it is the province of the judiciary to uphold the law, the courts must declare state laws and even acts of Congress null and void when they are inconsistent with a provision of the Constitution. The same principle holds with regard to executive actions contrary to the Constitution. Supreme Court pronouncements on questions of constitutionality are final and binding for all other courts and governmental authorities, whether state or federal.
In the U.S. system of judicial review, constitutional questions can be raised only in connection with actual “cases and controversies.” Advisory opinions to the government are common in other countries but are not rendered by U.S. federal courts. Although the cases and controversies requirement has been relaxed by the Supreme Court—at least to the extent of allowing class-action suits or allowing organizations to sue on behalf of their members who have not personally brought suit—it is still the case that courts will not decide a constitutional question unless it is rooted in a controversy in which the parties have a direct, personal interest. This requirement can sometimes frustrate efforts to obtain pronouncements on disputed issues.
Although the U.S. courts are the guardians of the Constitution, they are not bound to consider all the provisions of the Constitution justiciable. Under the doctrine of “political questions,” the Supreme Court has refused at times to apply standards prescribed by or deducible from the Constitution to issues that it believed could be better decided by the political branches of government. Since Luther v. Borden (1849), for example, it is a matter of settled practice that the court will not use Article IV, Section 4—which provides that the states must have a republican form of government—to invalidate state laws; it is for Congress and the president to decide whether a particular state government is republican in form. Many military and foreign policy questions, such as the constitutionality of a particular war, likewise have been considered political and therefore nonjusticiable.
On the other hand, the political-question doctrine has not prevented the Supreme Court from asserting its jurisdiction in cases that are politically sensitive. Thus, in United States v. Nixon (1974), the court ruled that President Richard Nixon was required to turn over to federal authorities the tape recordings that confirmed his complicity in the Watergate scandal. The doctrine also did not prevent the court from intervening in the presidential election of 2000, when it halted the recount of ballots in the disputed state of Florida and effectively confirmed George W. Bush’s victory, despite forceful arguments that, under the Constitution and relevant federal statutes, the matter was clearly one for Florida and Congress to decide.
Judicial review is designed to be more impartial than review by other institutions of government. This does not mean, however, that it is immune to policy considerations or to changes in the needs and political attitudes of the people. As a matter of fact, the Supreme Court’s reading of the Constitution has itself evolved in the course of more than two centuries, in accordance with the large transformations that have occurred in American society.
Given the structure of the U.S. Constitution, the Supreme Court historically has resolved constitutional disputes in four main areas: the relations between the states and the national government, the separation of powers within the national government, the right of government to regulate the economy, and individual rights and freedoms. In each of these areas the court’s conception of the Constitution has undergone substantial changes.
Because judicial review in the United States has been a model for other countries, it is appropriate to devote some discussion to it and to the body of constitutional law it has produced. Despite its overwhelming importance, judicial review is not explicitly mentioned in the U.S. Constitution; indeed, it is itself a product of judicial construction. In Marbury v. Madison (1803), the Supreme Court ruled that, because the Constitution clearly states that it is the supreme law of the land and because it is the province of the judiciary to uphold the law, the courts must declare state laws and even acts of Congress null and void when they are inconsistent with a provision of the Constitution. The same principle holds with regard to executive actions contrary to the Constitution. Supreme Court pronouncements on questions of constitutionality are final and binding for all other courts and governmental authorities, whether state or federal.
In the U.S. system of judicial review, constitutional questions can be raised only in connection with actual “cases and controversies.” Advisory opinions to the government are common in other countries but are not rendered by U.S. federal courts. Although the cases and controversies requirement has been relaxed by the Supreme Court—at least to the extent of allowing class-action suits or allowing organizations to sue on behalf of their members who have not personally brought suit—it is still the case that courts will not decide a constitutional question unless it is rooted in a controversy in which the parties have a direct, personal interest. This requirement can sometimes frustrate efforts to obtain pronouncements on disputed issues.
Although the U.S. courts are the guardians of the Constitution, they are not bound to consider all the provisions of the Constitution justiciable. Under the doctrine of “political questions,” the Supreme Court has refused at times to apply standards prescribed by or deducible from the Constitution to issues that it believed could be better decided by the political branches of government. Since Luther v. Borden (1849), for example, it is a matter of settled practice that the court will not use Article IV, Section 4—which provides that the states must have a republican form of government—to invalidate state laws; it is for Congress and the president to decide whether a particular state government is republican in form. Many military and foreign policy questions, such as the constitutionality of a particular war, likewise have been considered political and therefore nonjusticiable.
On the other hand, the political-question doctrine has not prevented the Supreme Court from asserting its jurisdiction in cases that are politically sensitive. Thus, in United States v. Nixon (1974), the court ruled that President Richard Nixon was required to turn over to federal authorities the tape recordings that confirmed his complicity in the Watergate scandal. The doctrine also did not prevent the court from intervening in the presidential election of 2000, when it halted the recount of ballots in the disputed state of Florida and effectively confirmed George W. Bush’s victory, despite forceful arguments that, under the Constitution and relevant federal statutes, the matter was clearly one for Florida and Congress to decide.
Judicial review is designed to be more impartial than review by other institutions of government. This does not mean, however, that it is immune to policy considerations or to changes in the needs and political attitudes of the people. As a matter of fact, the Supreme Court’s reading of the Constitution has itself evolved in the course of more than two centuries, in accordance with the large transformations that have occurred in American society.
Given the structure of the U.S. Constitution, the Supreme Court historically has resolved constitutional disputes in four main areas: the relations between the states and the national government, the separation of powers within the national government, the right of government to regulate the economy, and individual rights and freedoms. In each of these areas the court’s conception of the Constitution has undergone substantial changes.
In the world outside the United States, the idea of making the judiciary the guardian of the constitution was not warmly received until the second half of the 20th century. Political and legal traditions in Europe and elsewhere emphasized central executive or parliamentary sovereignty and forbade the judiciary from filling interstices in the laws. Eventually, however, the failure of popular governments based on parliamentary sovereignty, the experience of world war, wholesale decolonization, and the need to reconstruct the collapsed regimes built upon fascism and communism led to a sharp change in worldwide attitudes toward constitutional judicial review. By the early 21st century constitutional review by the judiciary of legislative and executive actions was a formal part of the written constitutions of a majority of the world’s nations, including the postcommunist regimes of eastern Europe and postapartheid South Africa. In other countries where judicial review is central to the workings of government—including Canada, Australia, and New Zealand—its foundations lay in national-autonomy statutes or judicial pronouncements rather than in written constitutions.
Judicial review in Europe differs from the U.S. model. Instead of allowing any court to rule on the constitutionality of statutes, with the high court in the regular judicial hierarchy being the ultimate arbiter, European countries have established special constitutional courts to which all questions concerning the constitutional validity of legislation or executive action must be referred—and which alone have the power to declare statutes or actions unconstitutional.
In 1920 Austria became the first European country to inaugurate centralized judicial review in a constitutional court. After World War II, Italy, West Germany, France, and Turkey also established constitutional courts, as did Spain and Portugal after the fall of the dictatorships in those countries in the 1970s. Virtually every post-Soviet eastern European country followed suit, as did Luxembourg in 1997. In contrast, the countries of Scandinavia, as well as Belgium, Greece, and Ireland, vest judicial-review powers of varying kinds in their regular courts. The United Kingdom and the Netherlands remain the principal European countries lacking constitutional judicial review. In both countries, however, the courts may hold that laws are void because they are inconsistent with the provisions of binding international treaties, such as those establishing the law of the European Union.
Where constitutional courts exist, questions concerning the validity of statutory laws or executive actions reach the court chiefly through referrals from the judges of ordinary courts, who certify the presence of a constitutional question in the litigation, or through appeals by the losing parties, who assert that the decisions of ordinary courts have deprived them of their constitutional rights. In some circumstances nonjudicial agencies—such as the national executive, the regional governments, or a parliamentary minority—can bring issues directly to the constitutional court. Most European constitutional courts also differ from the U.S. Supreme Court in that they can hear both “concrete” and “abstract” disputes—suits that, respectively, do and do not involve an actual case or controversy. In France the Constitutional Council can set aside unconstitutional statutes only before they have been promulgated and only upon petition by either the president of the republic, the prime minister, the chairman of either of the two legislative assemblies, or a parliamentary minority that includes at least 60 deputies or senators.
The U.S. system of judicial review by ordinary courts also has been adopted widely. It has been in operation in Switzerland, with some limitations, since 1874. It is also practiced in several major former British colonies, including India, Canada, Australia, and New Zealand, and in Japan and the Philippines, countries whose constitutions were drafted with considerable U.S. influence.
Judicial review by the highest regular courts has been the dominant arrangement in Latin America, though often the influence of a powerful president or the existence of a politicized appointment process has made constitutional review effectively a cipher. Nonetheless, courts in Brazil, Colombia, Mexico, and other Latin American countries have become increasingly active in restraining the executive and legislative bodies, and there is a trend toward greater use of judicial review in the region.
The Supreme Court first f or mally embraced the doctrine of judicial review in the 1803 case Marbury v. Madison. 8. Since Marbury, judicial review has become a c or e feature of American constitutional law. 9.
Jun 22, 2024 · The US Supreme Court takes its authority from Article III of the US Constitution, which established it as one of the three main organs of the federal government. Congress set up the Supreme Court, as well as the lower federal courts, with the Judiciary Act of 1789.
Nov 13, 2009 · On February 24, 1803, the Supreme Court, led by Chief Justice John Marshall, decides the landmark case of William Marbury v. James Madison, Secretary of State of the United States and...
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We have gained new insights into the English and colonial antecedents to American judicial review, the activities of the courts in the early republic, the rise of judicial review in the states, and even the constitutional decision-making of the U.S. Supreme Court.
