Judicial Review

Author:Gerald Gunther

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Judicial review, in its most widely accepted meaning, is the power of courts to consider the constitutionality of acts of other organs of government when the issue of constitutionality is germane to the disposition of lawsuits properly pending before the courts. This power to consider constitutionality in appropriate cases includes the courts' authority to refuse to enforce, and in effect invalidate, governmental acts they find to be unconstitutional.

Judicial review is America's most distinctive contribution to CONSTITUTIONALISM. Although courts have exercised judicial review almost from the beginning of American constitutional government, the question of the legitimacy of that JUDICIAL POWER has often provoked controversy as well as recurrent charges that American judges usurped the authority. Nearly two centuries of exercises of and popular acquiescence in the power have quieted the storms over its basic justifiability in recent decades, but vehement controversy continues regarding the proper scope and authority of judicial rulings on constitutionality. Moreover, particular exercises of judicial review continue to stir passionate political debates, as they have from the beginning.

The classic justification for judicial review was set forth by Chief Justice JOHN MARSHALL in MARBURY V. MADISON (1803). Marshall relied on general principles and constitutional text. His arguments from principle are not compelling. For example, his unchallengeable assertion that the Constitution was designed to establish a limited government does not demonstrate that courts should enforce those limitations. Constitutions prescribing limits on government had been adopted before 1803, as many have been since; but relatively few look to the judiciary for enforcement. Similarly, the fact that judges take an oath to support the Constitution does not imply judicial review, for the Constitution requires the oath of all federal and state officers. Far more persuasive are Marshall's references to two passages of the constitutional text. First, Article III lists cases "arising under the Constitution" as one of the subjects included within the JUDICIAL POWER OF THE UNITED STATES, suggesting that constitutional questions can give rise to judicial rulings. Second, the SUPREMACY CLAUSE of Article VI lists the Constitution first as among the legal sources that "shall be the supreme Law of the Land."

Although the inferences derivable from the constitutional text are not unchallengeable, they provide the strongest available support for Marshall's justification for judicial review. True, Article VI is specifically addressed only to state judges, for the "supreme Law of the Land" clause is followed by the statement that "Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Still, the CONSTITUTIONAL CONVENTION debates and federal LEGISLATION, ever since Section 25 of the JUDICIARY ACT OF 1789, have contemplated Supreme Court review of

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state court rulings on constitutional questions, and it is surely plausible to argue that the Supreme Court's authority on review would be no less than that of state judges obeying the command of the supremacy clause.

Federal court review of state court judgments is an especially plausible aspect of judicial review, for it is a typical policing technique to maintain the delineations of governing authority in federal systems. That strand of judicial review is common in other federal schemes as well, as in Switzerland and Australia. Yet even federal systems are conceivable without judicial review. Thus, nationalists at the Constitutional Convention initially urged reliance on the congressional veto and on military force to curb excesses by the states. The supremacy clause, and its reliance on routine judicial power to enforce federalistic restraints, stemmed from suggestions by states' rights forces at the convention.

Judicial review in the interest of FEDERALISM has played an important role in the United States; some observers, indeed, view it as the most essential function of judicial review. As Justice OLIVER WENDELL HOLMES once put it: "I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States." The supremacy clause goes a long way toward assuring this protection of the Union; but it provides less compelling justification for judicial review of congressional acts.

The constitutional text cited by John Marshall supports judicial review in all its aspects in a more basic sense. Article III and Article VI both reflect the premise central to judicial review?the premise that the Constitution is to be considered a species of law and accordingly cognizable in courts of law. Judicial review is essentially the judicial enforceability of constitutional norms, and viewing the Constitution as law rather than mere policy or precatory adjuration is the keystone of the more persuasive argument that the American constitutional scheme was designed to rely on judges, not merely troops or political restraints, to enforce constitutional limits.

This view of the Constitution as law?the view central to the argument for giving courts a major role in constitutional enforcement?made it relevant for Marshall to state that it was "emphatically the province and duty of the judicial department to say what the law is," and to describe judicial review as an outgrowth of the normal task of judges: to adjudicate the cases before them on the basis of all relevant rules of law, rules that include those stemming from the Constitution. And that in turn made it plausible for him to say that, where a statute and the Constitution conflict, the courts must enforce the superior Constitution and "disregard" the statute. That, to Marshall, was "of the very essence of judicial duty."

Even if Marshall's views of the Constitution as law and of the "judicial duty" were unanswerable, charges of usurpation would not be stilled. Whatever the strength of the inferences from Articles III and VI, it is undeniable that the power of judicial review is not explicitly granted by the Constitution?in contrast to the constitutions of the nations that, in modern times, have embraced systems similar to the American scheme of judicial review, such as West Germany, Italy, India, and Japan. Defenders of judicial review have accordingly sought to find added support for Marshall's conclusion in historical understandings and practices. None of the sources relied on, however, conveys overwhelming force.

For example, it is true that Marshall's argument was to a considerable extent anticipated by ALEXANDER HAMILTON in THE FEDERALIST #78; but Hamilton's essay was after all only a propagandistic defense of the Constitution during the ratification debates. Similarly, the arguments from historical practice are inconclusive at best. The much invoked statement by EDWARD COKE in BONHAM ' SCASE (1610)?that "the COMMON LAW will controul Acts of Parliament, [and] adjudge them to be utterly void" when they are "against common right and reason"?was inconsistent with British practice at the time and thus is not even respectable OBITER DICTUM. More relevant was the APPELLATE JURISDICTION of the PRIVY COUNCIL over colonial courts; but invalidation of legislation through that route was rare and unpopular. And the much debated alleged PRECEDENTS in the practice of state courts during the years immediately following independence hardly establish a well-entrenched practice of judicial review in the era of the ARTICLES OF CONFEDERATION. The preconstitutional examples that withstand scrutiny are few and controversial, and in any event it is not clear that many delegates at the Constitutional Convention knew about the scattered actual or alleged instances of invalidation of state laws by state judges.

Nor do the statements in the Constitutional Convention and the state ratification debates provide ironclad proof that judicial review was intended by the Framers. While it is true that most of the statements addressing the issue supported such a judicial power, it is equally true that only a minority of speakers...

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