Judicial Review, Its Origins and Impact Research Paper

Introduction

In every country of the world, a law is passed by the legislature for the betterment of society. Whether the legislative body enacts laws that are inconsistent with the purposes or not, is supposed to be justified by the court. Undeniably, judicial review is considered as one of the cardinal principles of the modern administrative system.

“The general idea is that specialist agencies are often in a better position than courts to resolve the ambiguities, and interpreting a statute in a way that promotes effective public policy may depend more on the expertise of the agency and less on the limited knowledge and modes of reasoning employed by courts.” (Tolley, 2003)

Judicial review is one of the significant aspects of constitutional law in a particular context to the United States of America. The power of the supreme court of America has been increased extending its power to the extent of judicial review. The Supreme Court not only interprets the laws passed by congress but also specifies their validity. Through the interpretation of the law, the Supreme Court determines the proper meaning of the law passed by congress. In the case of exercising judicial review, the Supreme Court specifies whether the legislature violates the limits of the constitution or not.

By this power, the Supreme Court controls the activities of legislative and executive organs and in the case of the commission of any wrong directs the concerned authority to reform it or take appropriate actions where it is so necessary.

Definition of Judicial Review

From the rational point of view, it can be said that the power of judicial review is the inherent power of the court by means of which it can justify the validity of the laws passed by congress.

It is the court’s power to review the actions of other branches of government, especially the court’s power to give validity to the legislative and executive actions as being unconstitutional. There is no unanimous or well-accepted definition of judicial review. Despite, attempts have been made to reveal a precise definition of judicial review. Experts have defined the term from their respective points of view. As per, Dimock, and Dimock, judicial review is the examination by the court, in a case actually before them, of legislative statutes and executive or administrative acts to determine whether or not they are prohibited by a written constitution or are in excess of power granted by it. Again, it has been held that

“Judicial review is the authority of judges to interpret the constitution and to refuse to enforce measures that, in their opinion, are in conflict with the constitution; the ultimate authority is that of the justice of the Supreme Court. The study of the American Constitution is, therefore, in large measure a study of judicial decisions and opinions.” (Garner, p.864)

Emergence and eminence of the concept of Judicial Review

The constitution does not specifically grant the power of the court to interpret the constitution, though it furnishes a sufficient verbal basis for the power. “The first assertion of that power against an act of Congress was made in 1803 in Chief Justice John Marshall’s famous opinion in the great case of Marbury v Madison” (Karim, 2007, p. 133).

The doctrine of judicial review has been gradually developed in the USA by which courts exercise the power of annulling any legislative measure or executive action which action or actions, in their opinion, go beyond the constitution. The federal judiciary acts as a guardian of the constitution. It interprets the constitution and decides the competencies of congress or state legislatures. If in the opinion of the courts, a particular act goes beyond the authority given to the Congress or state legislatures or that it encroaches upon the domain of either of the two legislatures or seeks to deny or abridge the civil liberties of the people, such act is supposed to be declared as unconstitutional or ultra vires and hence the said action become inoperative.

Similarly, any act of the executive which is deemed to be ultra-vires or beyond the constitutional limit, the given act or set of acts is reasonably expected to be held as unconstitutional. In 1933, congress in a desperate effort armed the president with large discretionary powers to deal with the economic crisis, the Supreme Court intervened. Besides, in the case of Panama refining company v Ryan, it was held that this was an invalid delegation of legislative power to the executive.

Much logically, it was observed that

“[a]nother part of the national industrial recovery act authorized the representatives of each industry to make codes of fair practice applicable to all members of the industry under the supervision of the president and empowered him to promulgate the codes as law. This provision is also declared by the supreme court as void.” (Schechter v United States)

The court went on stating that “[w]e think the court rule that the code-making authority thus conferred is an unconstitutional delegation of legislative authority” (Kapur & Misra, 2002, p, 226).

In America, the general people seemed that as it were an intellectual Mussoliniisn; but in the place of an arbitrary ruler they have created a supreme court. They have sought to establish a government of loss and not of man, though necessarily they have left the construction and enforcement of those fundamental laws or constitutions to tribunals of man, but tribunals of their own creation and who can, if necessary, be controlled by further constitutional amendments.

“Not only in the century and a half of our national existence have only fifty-three acts of congress been declared unconstitutional and refused enforcement by the Supreme Court, but the composition and control of that court, as well as of those tribunals which are subordinate to it. (Marbury v Madison).” (Cooley, 1994)

Judicial Review in the United States of America

Nowhere in the constitution of the USA, even in art-3 and 6, the power of judicial review of the supreme court of the USA is revealed. Through the interpretation of the constitution, the Supreme Court has taken this power in its jurisdiction. So, the power of judicial review is the Supreme Court’s own inherent power of the Supreme Court of the country.

Origin of judicial review in the USA

Through the pronouncement of the verdict of Marbury vs Madison, 1803, this type of concept has been created. At the very outset, justice Marshall raised the question as regards the validity of the laws of Congress. According to Marshall, It is the duty of the court to find out the laws of a particular nature that are related to a given type of court of justice. If there is a contradiction between the constitutional laws and the laws of congress, the constitutional law will prevail because the constitutional law is the highest law.

Justice Marshall is the pioneering father of the power of judicial review. In the history of the USA, through the introduction and interpretation of the due process of law mentioned in the 5th and 4th Amendments, the Supreme Court is entitled to justify the validity of the activities of all the departments of the government. In case of the fact that the Supreme Court finds a contradiction between the constitutional law and the laws that are given into effect or if the principle of natural justice severely lacks or becomes absent in the very legislation, the court may declare the said enactment of legislation as illegal or ultra-vires. From 1935 to 1936, the Supreme Court declared about 13 important laws as illegal which were passed by congress.

Marbury vs Madison case

In the case of Marbury vs Madison, William Marbury was the plaintiff. He filed a suit against James Madison who was the Secretary of State. William Marbury was selected as the Justice of the Peace in the District of Columbia.

The verdict that was given in the Marbury v. Madison case is one of the most important instances of the judicial system in USA. From the verdict of this case, the power of judicial review is invented in USA. In this case, Madison is proved us wrong and Marbury got back his position. By the virtue of the writ of mandamus, this case was deiced which states as “Congress, in granting the Supreme Court, the power to issue a writ of mandamus in a case like this has run afoul of the original jurisdiction provision of the Supreme Court contained in Article III of the Constitution” (Supreme Court, 2005).

In this case, Justice Marshall says that the power of judicial review which is established in this case is not limited to the Supreme Court. In all cases which are coming from the constitution, the power of judicial review was extended. In a point he quoted: “It is emphatically the province and the duty of the judicial department to say what the law is.” Again, he added, “The judicial power of the United States is extended to all cases arising under the Constitution.”

Thus, in the United States of America, the courts which have the judicial power have also the power of judicial review. But, surprisingly enough, the Supreme Court of the United States of America has waited about 54 years to declare the law as illegal passed by congress. As there was no federal court of appeals at that time, till 1875 it was impossible for the court to deal any suit. Though at that time the congress permitted the jurisdiction of the federal court of appeal, the courts of the United States of America had exercised the power of judicial review.

Aspects of Judicial Review

It is essential to add here that the power of judicial review has two aspects, i.e. Procedural aspect and the Substantive aspect. When the issue of justification come to the point for the purpose of determining whether the laws passed by the congress is irrelevant to the constitutional law or not, is regarded as the Procedural aspect of judicial review while the case suggest that the court justifies whether the law passed by the congress is logical or not is to be treated as Substantive aspect of judicial review.

Models of Judicial Review

There are two models of judicial review. One is the ultra-vires model and another is the common law model. A lot of amendments have been made for the development of each model attempting to work on the issue of judicial review. The ultra-vires model can be treated as the foundation of judicial review; because it always takes care of the matter about the limitation of the power of parliament beyond which the parliament can not pass any law. If the parliament passes any law beyond the limit of the power or jurisdiction of the enactment, the court may declare it as the ultra-vires.

The common law model can be treated as the second important basis of the power of judicial review which is created by the common law legal system. By this model, whether the parliament performs its duties properly or not is sparingly examined. “As such, they could even be used to strike down a power explicitly granted by the parliament to be exercised in breach of the principle” (Halpin, 2001).

The importance of judicial review in the USA

The exercise of judicial review is very much important for the betterment of a given legislative or executive or the judiciary of a country. For the power of judicial review, the executive can not be arbitrary. At the time of law-making, the legislative body always thought to believe that it will be reviewed by the court. On the other hand, for the matters that are associated with the power of the judicial review, the executive body is expected to be rightly careful of its duty and limitation as prescribed by the given enactments. It is equally important in the case of the judiciary. Because; all the important duties of the state are embodied in the hands of justice. Thus the invention of the power of judicial review has changed the total aspects of the USA and has created a new era in the constitutional history of USA.

Relationship between Judicial Independence and Judicial Review

As the judicial review is not possible without the judicial independence, there is a close relationship between judicial independence and judicial review. “Despite an almost universal consensus regarding its normative value, the evolution of judicial independence in new democracies has yet to be fully explored” (Herron & Randazzo, 2003).

The experts have given their opinion regarding the independence of judicial system, though they were seemed as being somewhat reluctant not to give the opinion about the definition of judicial independence. Only one definition is given by the Boylan in 1998. To quote him “At its most basic level, independence is related to the impartial resolution of conflict by a neutral third party” (Herron & Randazzo. 2003).

If the judiciary is completely free from the influence of the political interferences, it can be said as the independence of the judiciary. If the court of justice is influenced by the political party and does all actions in accordance with the opinion of that political party, the power of the judicial review causes great danger for the betterment of the society and for the establishment of democracy. So the effectiveness of the judicial review is not possible if the judiciary is not independent.

Criticism

The theory of judicial review is not beyond criticism. Critics have argued as to the loopholes and shortcomings of judicial review. The content of the criticism that has been argued by the people can be summed up as such:

1. The constitution of US does not authorize the power of judicial review. The Supreme Court has treated it as its own inherent power.
2. The judicial review power given to the court is against the democratic process, because the member of the congress are selected by the people and the law is passed by the two-third majority of that members and if that law is forfeited by the supreme court, it is the violation of the expression of the people.
3. Jeferson says it is against the theory of separation of judiciary. The judicial review power given to the court creates an uncertain situation. This power has crossed the power of legislature and creates the new problem. By this power, the justice may impact on the politics of USA.
4. Robert A. Dahi says that the coursed the protection of the 5th, 13th, 14th and 15th amendments to preserve the rights and liberties of a relatively privileged group at the expense of the rights and liberties of a submerged group.
5. Charrles Hughes says that we are under the constitution but the constitution is what the judges say it is.
6. Harlan says the constitution does not confer on the court blanket authority to step it to every situation where the political branch may be thought to have fallen short.

Concluding Remarks

There is no exaggeration on the assertion that the power of judicial review is an important consideration for an ideal constitutional government. Despite, there are some impediments; judicial review in United States of America has got much developed. Howsoever, in order to improve the situation and introduce better mechanism for judicial review in the country, following considerations may be rightly recommended.

The Government should consider the defects and loopholes that are impeding for the introduction of a sound judicial review system. Steps should also be taken so that the court(s) while exercising the power may invoke the privileges for ensuring a fair judicial review mechanism and help developing the system as well.

References

Cooley, M. Thomas. (1994). The General Principles of Constitutional Law in the USA, 4th ed. Culcutta: Hindustan Law Book Company.

Garner, A. Bryan. ( Black’s Law dictionary, 8th ed., Halpin, Andre. (2001). The Theoretical Controversy Concerning Judicial Review. The Modern Law Review Limited. 500-511.

Herron, S. Erik. & Randazzo, A. Kirk. (2003). The Relationship Between Independence and Judicial Review in Post-Communist Courts. The Journal of Politics, Vol. 65, No. 2, 2003. 422–438.

Kapur, C. Anup. & Misra, K.K. (2002). Select Constitution, 15th Revised ed., Delhi: S Chand & Company Ltd.

Karim, M. Rezaul. (2007). Constitutional Law of USA. 2nd ed., Dhaka: City Law Books. Schechter v United States, 295 U.S, 495(1935).

Supreme Court of the United States of America. 2005. Remarks of the Chief Justice William H. Rehnquist-May 8, 2001. Web.

Tolley, C. Michael. Judicial Review of Agency Interpretation of Statutes: Deference Doctrines in Comparative Perspective. The Policy Studies Journal, Vol. 31, No. 3, 2003. 421-440.