judicial review essay in english

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Judicial review in the United States

Judicial review outside the united states.

• Applications of judicial review
• Transnational judicial review

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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.

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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.

From 1789 through the Civil War era, the Supreme Court was a crucial participant in nation building, its decisions reinforcing the newly born structures of the federal system. The court’s rulings established judicial supremacy in constitutional interpretation, gave force to the national supremacy clause of Article VI of the Constitution—which declared the Constitution the supreme law of the United States—and laid the foundation for the power of the federal government to intervene in the national economy by broadly interpreting its constitutional power to regulate interstate commerce . In contrast, during the decades of industrialization and economic growth that followed the Civil War, the court was very skeptical of attempts at economic regulation by the federal government. Indeed, until the Great Depression spawned the New Deal legislation of President Franklin D. Roosevelt , the court often ruled that many areas of economic activity were matters exclusively for state legislation or not subject to government regulation at all. After 1937, however, the court lifted the obstacles it had previously erected to federal intervention in the economic and social transactions of the country . Within a few years the Supreme Court established that Congress can make laws with respect to practically all commercial matters of national concern.

A foundation of this expansion of the government’s power to intervene in the economy and society was laid in the doctrine of federal spending power first enunciated in United States v. Butler (1936). The outcome of this case was overtly hostile to the expansion of government power, since the Supreme Court ruled unconstitutional a tax provision of the Agricultural Adjustment Act of 1933 that was designed to encourage limitation of production. However, the lasting contribution of the decision emerged from the Supreme Court’s conclusion that the Constitution gives Congress a general and broad power to tax and spend in support of the general welfare . As a further example, the new interpretation of the commerce clause laid down in Wickard v. Filburn (1942) upheld the federal government’s right to enforce quotas on the production of agricultural products in virtually all circumstances, even when, as in this case, a farmer exceeding his quota—by an admittedly sizable amount of wheat—proclaimed his intention to consume all his excess production, thereby preventing it from entering interstate commerce at all.

In the area of separation of federal powers , the court gradually came to support a substantial transfer of powers to the executive and to administrative agencies. Because Article I, Section 1 of the Constitution confers all legislative powers upon Congress, the court at first ruled that such powers cannot be delegated by Congress to the executive. This doctrine was much diluted in the 20th century, when it became clear that delegated legislation was necessary to administer a mixed economy . The court’s generally favourable attitude toward enhancing the powers of the executive branch has manifested itself in other areas as well, notably in the field of foreign affairs. Nevertheless, the court has set important limits on the powers of the president. It has ruled, for example, that the president does not have an “inherent” power to seize steel mills in time of war ( Youngstown Sheet & Tube Co. v. Sawyer , 1952) and that the prerogative of the president to keep confidential records secret must yield to the need of the judiciary to enforce criminal justice if the secret is not strictly related to military or diplomatic matters ( United States v. Nixon , 1974).

Until the New Deal, the court used the provisions of the Constitution concerning individual rights and freedoms primarily to protect property and economic liberties against state and federal efforts to interfere with the market. Thus, it often used the due process clause of the Fifth and Fourteenth amendments (no person shall be deprived of “life, liberty, or property, without due process of law”) to invalidate social legislation, such as laws establishing minimum or maximum working hours . In contrast, the court’s agenda is now dominated by litigation directly raising questions involving civil and political rights and freedoms, as well as individual equality before the law. Due process claims focus primarily on procedural rights in criminal and administrative areas. In the mid-20th century, during a period of expansion of individual rights, the court declared unconstitutional racial segregation in the schools ( Brown v. Board of Education of Topeka , 1954) and malapportionment in electoral districts ( Baker v. Carr , 1962; Wesberry v. Sanders , 1964) and strengthened the rights of criminal defendants and the accused ( Mapp v. Ohio , 1961; Miranda v. Arizona , 1966). The court also recognized a constitutional right to privacy ( Griswold v. State of Connecticut , 1965), which became the foundation for the right of a woman to obtain an abortion ( Roe v. Wade , 1973; Planned Parenthood of Southeastern Pennsylvania v. Casey , 1992). Beginning in the 1970s, the court was less willing to support litigant claims that would further expand individual rights and freedoms, though for the most part it did not significantly restrict them.

Through more than two centuries of judicial review, the U.S. Supreme Court typically has supported the values of the prevailing political ideology against challenges from the states or other branches of the federal government. Indeed, it has often been said that the court conducts judicial review by following election returns and public opinion polls. Although there is considerable insight in this observation, it is not true that the court simply tailors its decisions to comport with the political views of the electoral majority. At times, as in the early 20th century, the court’s view of economic legislation was out of step with the views of the electorate, the other federal branches, and some states. In the 1950s and early ’60s the court also made decisions contrary to public opinion and government policy regarding political and racial equality and other civil, political, and procedural rights.

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.

Although the practice is not always enshrined in written constitutions, constitutional judicial review is also the rule in a majority of African, Middle Eastern, and Asian countries, with the regular-court variety being most common in former British territories and the constitutional-court type in former French dependencies. There is also a small group of countries that lodge the power of constitutional review specifically in an agency other than a regular or a constitutional court.

For the most part, the American doctrine of political questions has not been accepted in the jurisprudence of centralized European systems. Besides adjudging the validity of statutory law, European constitutional courts usually must also resolve conflicts between state agencies (the legislature , the executive, the president of the republic, and the judiciary) concerning their respective constitutional prerogatives; in addition, they may conduct trials of impeachment and dispose of other matters of constitutional import.

judicial review

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Judicial  review is the idea, fundamental to the U.S. system of government, that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the  judiciary . Judicial review allows the  Supreme Court  to take an active role in ensuring that the other branches of government abide by the  Constitution . 

The text of the Constitution does not contain a specific provision for the power of judicial review. Rather, the power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI of the  U.S. Constitution . Judicial review of the government was established in the landmark decision of  Marbury v. Madison , the first Supreme Court decision to strike down the act of Congress as unconstitutional, with the famous line from Chief Justice John Marshall: "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." 

While this case has served as the bedrock for judicial review ever since, courts nevertheless must be careful not to violate the Separation of Powers doctrine when engaging in judicial review. While of course it is the duty of the judiciary to interpret the law and decide which laws violate the Constitution, judges and justices understand that they must not usurp the legislative duty to create the law. While this consideration is often implicit, many judges and justices explicitly rely on it to guide their decision and craft their opinion . This principle is also often at the forefront of many important decisions in administrative law , where judicial officials must carefully strike the right balance between assessing the validity of executive agency actions without deciding what the law is for themselves. 

[Last updated in June of 2023 by the Wex Definitions Team ]

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Judicial Review: History of Origin, Process, Consequences Essay

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Declaration of Independence

The intentions of judicial review, the consequences of judicial review, works cited.

The judicial review found its origins within the Declaration of Independence, which declared the colonies of North America, to be “free and independent states.” (“Declaration of Independence:” par. 31). This declaration has been at the foundation of the philosophical, political, and ideological battle between those advocating a very broad construction of the limits, and strict construction of powers within the Constitution and vice versa.

Before the ratification of the Constitution, the Articles of Confederation document provided the legal basis of the thirteen founding colonies to declare themselves individual sovereign states but to agree to a perpetual confederation. The word confederation is important as it denotes an alliance, nor the formation of a single entity. Within the Articles of Confederation, each State retained full sovereignty over all matters not “expressly delegated” to the United States (“Transcript of Articles of Confederation 1777” par.3)

At the Philadelphia convention, the Virginia delegates were opposed to the new Constitution, fearing that it promoted federalism. Governor Edmund Randolph, a pro-ratification delegate, was forced into making concessions to Patric Henry. These concessions consisted of the phrase “expressly delegated” (“Transcript of Articles of Confederation 1777″ par.3), that appeared in the Articles of Confederation, to be written into the Constitution to limit the powers of the new Congress. Further, they wrote into their ratification statement that they ”retained the right to withdraw from the new government, if the new government exceeded its delegated powers” (“Ordinance of Secession 1861” par. 1). As such, this understanding formed part of the State of Virginia’s ratification in 1788. As all the individual states were equals, Virginia’s conditions would apply to each state.

The ratification of the Constitution created the US Supreme Court. Article III created the Judicial Branch. Section 1 created the Judicial Powers. Section 2 assigned “original jurisdiction” over the individual States. (“The United States Constitution” Article III). Judicial Review is the lens through which all new laws created by Congress and Senate, are examined for their Constitutionality by the sitting Justices of the Supreme Court. If a new law created by the legislative branch is deemed to be unconstitutional, that law will be struck down. The Executive branch, has with the expanding powers of the Presidency, taken to creating Bills to put before the legislative branch for their approval, and creation of a new law therefrom. The current high profile example of this is Obama’s “Healthcare Bill” which was eventually passed by the legislative branch and is now being examined for its constitutionality by the Supreme Court.

Judicial Review makes the Supreme Court the de facto lawmaker in the United States today through their monopoly control of the interpretation of the US Constitution. Thus, effectively, the system of checks and balances envisaged by the writers of the Constitution is abrogated. The Supreme Court, through Judicial Review, has widened its powers of interpretation through the phrase “substantive due process” (“The United States Constitution” Amendment 14). This allows the Supreme Court to define through Judicial Review, what rights the Constitution confers or protects.

This has created huge controversies that relate to the interpretations assigned to the Constitution. The decisions of the Justices, while sitting on the Supreme Court bench, which is for life, barring impeachment, can carry immense political repercussions. There are several styles of interpretation that are employed by the Justices: “textualists, intentionalists, pragmatists, and natural law theorists” (“Theories of Constitutional Interpretation” Introduction). Gutzman states that the Jeffersonian interpretation, which is strict constructionism, argues for sovereign states.

“Most history and legal textbooks say that Jefferson and Madison invented the idea of state sovereignty. But… they only argued for what the founders had already understood to be true about the sovereign states from the beginning, even if some of the founders (the nationalist and monarchist wings) wanted to change that understanding.” (73).

Through their interpretations via the Judicial Review process, the Justices can, and have, effectively re-written the Constitution. Gutzman writes that, “Justice Marshall, in McCulloch v Maryland, wrote, that the Articles of Confederation had specified that Congress had only the powers it was expressly delegated, that the Constitution included no such language, so no such principle applied to it.” (91).

This interpretation of the Constitution, by Justice Marshall, reduced the power assigned to individuals and the States, and arrogated it to the Supreme Court, thus greatly increasing the power and influence wielded by the Court. This approach is now usually referred to as a living constitution, which requires ongoing interpretation to evolve with society and the ethics of the times.

I would argue that this interpretation is open to serious challenges and arguments. Under Amendment 9 – Construction of Constitution. Ratified 12/15/1791 “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (“The United States Constitution” Amendment 9). The further argument can be made with Amendment 10 – Powers of the States and People. Ratified 12/15/1791. Amendment 10 “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (“The United States Constitution” Amendment 10).

Taken together, the Amendments provide for the limitation of central government power in favor of retaining the rights of the States and further, the individual. This would constitute a textualist interpretation.

Judicial Review has an ulterior purpose. The oft-quoted purpose, to provide a system of checks and balances to government power, are simply the assertions of apologists and technocrats. The purpose of the Judicial Review is to legitimize and validate the expansion of central government power. De Jouvenel states, “in the history of political thought, a concept originally designed to limit and check state power, was turned by the state into an instrument that gave it legitimacy” (27).

So it is with Judicial Review. The history of the United States demonstrates the veracity of De Jouvenel’s observation. The constant encroachment of the central government over the rights of the States and individuals has been extraordinary.

The United States was birthed in revolution and the breaking of English law. That the revolution was successful, allowed the individuals to create a new law. That law, the Constitution, was designed to accomplish two tasks. The first was to create a Republic, where the Rule of Law is observed. The second was to create a federal system of government. These two objectives can be accomplished, but they carry certain contradictions within themselves. It is largely these contradictions that Judicial Review is supposed to resolve. I would argue that federalism is trumping republicanism, largely due to Judicial Review.

De Jouvenel, Bertrand. On Power. London and New York: Hutchinson 1948. Print.

Gutzman, Kevin. The Politically Incorrect Guide to the Constitution. Massachusetts, Washington D.C.: Regnery Publishing 2007. Print.

Ordinance of Secession 1861. Web.

The Declaration of Independence 1776. Web.

Theories of Constitutional Interpretation n.d. Web.

The United States Constitution n.d. Web.

Transcript of Articles of Confederation 1777. Web.

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What Is Judicial Review?

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Judicial Review is the power of the U.S. Supreme Court to review laws and actions from Congress and the President to determine whether they are constitutional. This is part of the checks and balances that the three branches of the federal government use in order to limit each other and ensure a balance of power.

Key Takeaways: Judicial Review

• Judicial review is the power of the U.S. Supreme Court to decide whether a law or decision by the legislative or executive branches of federal government, or any court or agency of the state governments is constitutional.
• Judicial review is a key to the doctrine of balance of power based on a system of “checks and balances” between the three branches of the federal government.
• The power of judicial review was established in the 1803 Supreme Court case of Marbury v. Madison . 

Judicial review is the fundamental principle of the U.S. system of federal government , and it means that all actions of the executive and legislative branches of government are subject to review and possible invalidation by the judiciary branch . In applying the doctrine of judicial review, the U.S. Supreme Court plays a role in ensuring that the other branches of government abide by the U.S. Constitution. In this manner, judicial review is a vital element in the separation of powers between the three branches of government .

Judicial review was established in the landmark Supreme Court decision of Marbury v. Madison , which included the defining passage from Chief Justice John Marshall: “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.”

Marbury vs. Madison and Judicial Review

The power of the Supreme Court to declare an act of the legislative or executive branches to be in violation of the Constitution through judicial review is not found in the text of the Constitution itself. Instead, the Court itself established the doctrine in the 1803 case of Marbury v. Madison .

On February 13, 1801, outgoing Federalist President John Adams signed the Judiciary Act of 1801, restructuring the U.S. federal court system . As one of his last acts before leaving office, Adams appointed 16 (mostly Federalist-leaning) judges to preside over new federal district courts created by the Judiciary Act.

However, a thorny issue arose when new Anti-Federalist President Thomas Jefferson ’s Secretary of State, James Madison refused to deliver official commissions to the judges Adams had appointed. One of these blocked “ Midnight Judges ,” William Marbury, appealed Madison’s action to the Supreme Court in the landmark case of Marbury v. Madison , 

Marbury asked the Supreme Court to issue a writ of mandamus ordering the commission be delivered based on the Judiciary Act of 1789. However, Chief Justice of the Supreme Court John Marshall ruled that the portion of the Judiciary Act of 1789 allowing for writs of mandamus was unconstitutional.

This ruling established the precedent of judicial branch of the government to declare a law unconstitutional. This decision was a key in helping to place the judicial branch on a more even footing with the legislative and the executive branches. As Justice Marshall wrote:

“It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”

Expansion of Judicial Review

Over the years, the US Supreme Court has made a number of rulings that have struck down laws and executive actions as unconstitutional. In fact, they have been able to expand their powers of judicial review.

For example, in the 1821 case of Cohens v. Virginia , the Supreme Court expanded its power of constitutional review to include the decisions of state criminal courts.

In Cooper v. Aaron in 1958, the Supreme Court expanded the power so that it could deem any action of any branch of a state's government to be unconstitutional.

Examples of Judicial Review in Practice

Over the decades, the Supreme Court has exercised its power of judicial review in overturning hundreds of lower court cases. The following are just a few examples of such landmark cases:

Roe v. Wade (1973): The Supreme Court ruled that state laws prohibiting abortion were unconstitutional. The Court held that a woman's right to an abortion fell within the right to privacy as protected by the Fourteenth Amendment . The Court’s ruling affected the laws of 46 states. In a larger sense, Roe v. Wade confirmed that the Supreme Court’s appellate jurisdiction extended to cases affecting women’s reproductive rights, such as contraception.

Loving v. Virginia (1967): State laws prohibiting interracial marriage were struck down. In its unanimous decision, the Court held that distinctions drawn in such laws were generally “odious to a free people” and were subject to “the most rigid scrutiny” under the Equal Protection Clause of the Constitution. The Court found that the Virginia law in question had no purpose other than “invidious racial discrimination.”

Citizens United v. Federal Election Commission (2010): In a decision that remains controversial today, the Supreme Court ruled laws restricting spending by corporations on federal election advertising unconstitutional. In the decision, an ideologically divided 5-to-4 majority of justices held that under the First Amendment corporate funding of political advertisements in candidate elections cannot be limited.

Obergefell v. Hodges (2015): Again wading into controversy-swollen waters, the Supreme Court found state laws banning same-sex marriage to be unconstitutional. By a 5-to-4 vote, the Court held that the Due Process of Law Clause of the Fourteenth Amendment protects the right to marry as a fundamental liberty and that the protection applies to same-sex couples in the same way it applies to opposite-sex couples. In addition, the Court held that while the First Amendment protects the rights of religious organizations to adhere to their principles, it does not allow states to deny same-sex couples the right to marry on the same terms as those for opposite-sex couples.

Updated by Robert Longley

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Judicial Review

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