Judicial review

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Judicial review is the power of a court to review a law or an official act of a government
employee or agent for constitutionality or for the violation of basic principles of justice.
In many jurisdictions, the court has the power to strike down that law, to overturn the
executive act, or order a public official to act in a certain manner if it believes the law or
act to be unconstitutional or to be contrary to law in a free and democratic society. In
some, such as Scotland and also England, the power goes further, and it may be possible
to strike down a decision simply because it ignored relevant and material facts.

Contents
[hide]
 1 Judicial review in individual countries
o 1.1 Judicial review in Australia
 1.1.1 Constitutionality
 1.1.2 Merit
 1.1.3 Legality
 1.1.4 The States
o 1.2 Judicial review in Austria
o 1.3 Judicial review in Canada
o 1.4 Judicial review in the People's Republic of China
o 1.5 Judicial review in England and Wales
 1.5.1 Standing
 1.5.2 Amenability
 1.5.3 Illegality
 1.5.4 Irrationality
 1.5.5 Procedural impropriety
 1.5.6 Remedies
 1.5.7 Human Rights Act 1998 s.6
 1.5.8 Breach of EU law
o 1.6 Judicial review in Germany
 1.6.1 Similar judicial reviews
o 1.7 Judicial review in France
o 1.8 Judicial review in the Republic of Ireland
o 1.9 Judicial review in Malaysia
o 1.10 Judicial review in the Philippines
o 1.11 Judicial review in Scotland
o 1.12 Judicial review in Switzerland
o 1.13 Judicial review in the United States
  1.13.1 Administrative Review
 1.13.2 Constitutional Review
 1.13.3 Pros and cons
 1.13.4 Standard of review
 2 See also

 3 Notes and references

[edit] Judicial review in individual countries

[edit] Judicial review in Australia

[edit] Constitutionality

Judicial review of federal and state legislation for constitutionality is governed by Section
76 of the Constitution of Australia, making the High Court of Australia one of the first
courts in the world to exercise this power, after the US Supreme Court.

Australia has a unified system of state and federal courts, so state and federal
constitutional issues can arise in state courts. A significant constitutional issue is almost
always removed into the High Court of Australia for a final decision.

[edit] Merit

Beginning with the Administrative Appeals Tribunal Act 1975, Australia was the second
Westminster system country to adopt a comprehensive system of administrative appeals
on the merits of decisions.

[edit] Legality

Judicial review on the legality of federal administrative decisions in Australia is available

under the Administrative Decisions (Judicial Review) Act 1977 or ADJR Act for short.
An administrative act may be reviewable if it is a decision of an administrative character
made, proposed to be made, or required to be made under an enactment by a
Commonwealth authority or officer, excluding a decision of the Governor-General or a
decision made exempt under statute. The Act provides for review of decisions (s5),
conduct engaged in for the purpose of making a decision (s6) of failing to make a
decision (s7). Under the Act, statutory orders of review replace the common law writs
and equitable remedies (s16).

[edit] The States

Various Australian States also provide for statutory judicial review. In Queensland, the
common law doctrines have been repealed and replaced under Part 5 (ss41–47) of the
Judicial Review Act 1992 (Qld). Part 3 (ss20–30) provides the equivalent of the
Commonwealth scheme, with the exception that decisions of an administrative character
may also be reviewable if made under a "non-statutory scheme or program", provided it
is publicly funded (s4(b)).

[edit] Judicial review in Austria

When the Constitution of Austria, drafted by Hans Kelsen, was enacted in 1920, Austria
was the first country to implement what is now known as the "Austrian system" of
judicial review, where a separate Constitutional Court has juridisction to review the
constitutionality of statutes and decrees. There are various circumstances under which the
Constitutional Court of Austria can be required to review legislation, e.g.

 upon request by a qualified parliamentary minority of one third;

 upon request of another court;
 upon request by anyone who can show that he is individually affected by the
statute;
 upon appeal against an administrative act where an individual charges that it is
based on unconstitutional legislation.

The Constitutional Court can also review statutes which are part of the constitution on
whether they are compatible with "basic principles" of the constitution, such as
democracy, federalism, the rule of law, the republican principle or the separation of
powers. Other than normal constitutional statutes, pieces of legislation seriously affecting
those principles (such as Austria's accession to the EU) require a referendum in addition
to the two thirds majority normally required to change or amend the constitution.
However, so far the court has only in one case found that part of the constitution was
incompatible with its basic principles.

[edit] Judicial review in Canada

In Canada, the same principle applies as in the British parliamentary system, though since
the Constitution of Canada created a federal state there was an issue of the division of
powers so while there were questions regarding judicial review when jurisdictional
conflicts arose, there was no clear power to overturn laws based upon other grounds.

It is important to note that the courts in each province, while provincial, are courts of
plenary jurisdiction under the Canadian constitution and are held to have the traditional
powers of judicial review such as in England and Wales. Regarding the review of
administrative decisions by public officials the concepts of fundamental justice and
overturning of patently unreasonable decisionmaking have developed along with the
evolution of the royal writs as in the United Kingdom.

With the patriation of the Constitution of Canada in 1982, the Constitution Act, 1982
granted the power of judicial review to the courts under section 52(1). It stated:
 52(1) The Constitution of Canada is the supreme law of Canada, and any law that
is inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect.

The accompanying Canadian Charter of Rights and Freedoms provided a bill of rights
through which the courts could strike down laws that violated it. However, certain rights
could be overridden by governments by invoking the notwithstanding clause in
legislation. To date it is a mechanism which has never been used by the Federal Level of
government and infrequently used at the provincial level.

[edit] Judicial review in the People's Republic of China

Courts in the People's Republic of China are empowered under the Administrative
Procedure Law of the People's Republic of China to review concrete actions of state
officials, which do not impact national security or foreign affairs. However, they do not
have the general authority to strike down administrative legislation, which under the
Legislation Law of the People's Republic of China belongs to the legislative bodies.

Courts in the PRC also do not have the authority to interpret the constitution of the PRC.
This authority belongs to the Standing Committee of the National People's Congress.
Although the NPCSC has never formally struck down a statute or administrative
provision as unconstitutional, the NPCSC has forced legislatures or administrative bodies
to retract laws and regulations that would likely be found unconstitutional. One notable
example of this was the case of Sun Zhigang in which the State Council revoked
regulations concerning detention of migrant workers, when it was clear that the NPCSC
would have ruled those regulations as violating the Legislation Law.

The power of the NPCSC to interpret law is also notable in that unlike the People's Court
system in China, its jurisdiction extends to the special administrative regions of Hong
Kong and Macao.

[edit] Judicial review in England and Wales

Courts in England and Wales have the power to strike down an administrative action , but
under the doctrine of parliamentary supremacy they do not have authority to strike down
a statute or review an action on constitutional grounds.

[edit] Standing

Judicial review in England is provided by virtue of section 31 of the Supreme Court Act
1981. Pursuant to s.31(3) a prospective applicant for judicial review must request 'leave'
(now The test of sufficient interest, or locus standi, is fairly liberal, especially when
compared to the 'victim' test adopted for claims under section 7(3) of the Human Rights
Act 1998. Representative applications are allowed, and have been permitted from
organisations such as Greenpeace and charities such as the World Development
Movement.
In the case of R v Inland Revenue Commission, ex parte National Federation of Self-
Employed, Fleet Street Newspapers had been avoiding taxes illegally. The IRC
subsequently discovered this and struck a retributive deal with the newspaper which was
considered unfair by the National Federation of Self-Employed, as the latter had never
been treated so favourably by the IRC. The NFSE sought to bring a claim for judicial
review against the IRC, citing extraneous, irrelevant considerations (the IRC was anxious
to avoid the newspaper striking). It was held that the NFSE had insufficient interest to
bring a claim for judicial review.

In this landmark case, Lord Wilberforce set out 3 criteria for consideration in

[edit] Amenability

It is not only Government bodies which are susceptible to review, but also any body
which operates a public function, for example the Panel on Takeovers and Mergers. In
addition to this, certain aspects of private corporations' businesses can be deemed to be
public in nature and can also be liable to Judicial Review. The test generally considered
by the Court in deciding whether a function is public is "if the body in question did not
exist would some government department assume its responsibilities?"

[edit] Illegality

Under the heading of 'illegality' are encompassed the following grounds of review:

 a public body does something for which it has no positive legal authority
 a statute places a duty on a public authority and that duty has not been carried out
 a statute confers a power on an authority and that power is used for a purpose
other than that intended by the statute
 in exercising a public power an authority takes into account an irrelevant
consideration or fails to take into account a relevant consideration
 a statute confers a power on public body 'X' but it was taken by public body 'Y'
("unlawful delegation")
 a statute confers discretion on a public authority and that authority adopts an
overly rigid policy as to how that discretion will be exercised ("fettering
discretion")
 a public authority makes a factual error in arriving at its decision.

[edit] Irrationality

Under the heading of 'irrationality' are encompassed the following grounds of review:

 the decision is obviously perverse or absurd

 the decision is illogical
 the decision is disproportionate
Irrationality is also known as Wednesbury unreasonableness after the case of Associated
Provincial Picture Houses Ltd v. Wednesbury Corp which stated that a decision would be
unreasonable if it "is so unreasonable that no reasonable authority could ever have come
to it" (per Lord Greene). It is very difficult to establish and rarely submitted as a ground
on its own. There is also a sliding scale of intensity of review on the grounds of
unreasonableness:

Non-justiciable --> Ordinary Wednesbury --> Super Wednesbury --> Anxious Scrutiny

Non-justiciable cases are those which involve matters best left to the executive (such as
national security), and courts will refuse to review such cases on the basis of irrationality.
Anxious scrutiny applies to cases involving human rights. As a general rule, the further to
the right of the scale the case falls, the more likely the courts are to find that a decision
was unreasonable.

[edit] Procedural impropriety

Under the heading of 'procedural impropriety' are encompassed the following grounds of
review:

 the decision-maker was biased

 the decision-maker failed to provide a fair hearing
 the decision-maker failed to provide reasons for the decision after it was taken

[edit] Remedies

On a Judicial Review claim, the Court may grant, as may be appropriate, a mandatory
order (i.e. mandamus), a prohibitory order (i.e. Prohibition), a quashing order (i.e.
Certiorari), damages, injunction or declaratory relief (i.e. it can simply state what the
legal position is.)

[edit] Human Rights Act 1998 s.6

Section 6(1) of the Human Rights Act 1998 provides that "it is unlawful for a public
authority to act in a way which is incompatible with a Convention right". The Convention
referred to is the European Convention on Human Rights. An applicant may only bring a
review on this ground if "he is (or would be) a victim of the unlawful act" - s.7(1)(b).

[edit] Breach of EU law

Since British membership of the European Union, it has always been possible to bring a
claim based on EU Law. However, before the Factortame case it was not possible to gain
interim relief against the Crown for breaches of EU Law or to suspend the application of
an Act of Parliament. In Factortame, the European Court of Justice determined that this
was not sufficient to give full effect to the treaties. Accordingly, the House of Lords
recognised the power to grant relief pending determination of European Law claims.
Since Frankovich v Italy, it has been possible to get damages for failure by a member
state to implement a directive.

[edit] Judicial review in Germany

In Germany, judicial review is a legal principle defined and guaranteed by the German
constitution (often referred to as the Basic Law or Grundgesetz). Judicial review is indeed
intended as a safeguard against tyranny of the majority and has been successfully
employed to challenge, for example, the national census efforts of the German
government in the 1980s. In particular, article 93 states that the Federal Constitutional
Court (BVerfG) shall rule:

1. on the interpretation of this Basic Law in the event of disputes concerning the
extent of the rights and duties of a supreme federal body or of other parties vested
with rights of their own by this Basic Law or by the rules of procedure of a
supreme federal body;
2. in the event of disagreements or doubts respecting the formal or substantive
compatibility of federal law or state law with this Basic Law, or the compatibility
of state law with other federal law, on application of the Federal Government, of
a state government, or of one third of the Members of the Bundesrat;
2a. in the event of disagreements whether a law meets the requirements of
paragraph (2) of Article 72, on application of the Bundesrat or of the government
or legislature of a state;
3. in the event of disagreements respecting the rights and duties of the Federation
and the states, especially in the execution of federal law by the states and in the
exercise of federal oversight;
4. on other disputes involving public law between the Federation and the states,
between different states, or within a state, unless there is recourse to another
court;
4a. on constitutional complaints, which may be filed by any person alleging that
one of his basic rights or one of his rights under paragraph (4) of Article 20 or
under Article 33, 38, 101, 103, or 104 has been infringed by public authority;
4b. on constitutional complaints filed by municipalities or associations of
municipalities on the ground that their right to self-government under Article 28
has been infringed by a law; in the case of infringement by a state law, however,
only if the law cannot be challenged in the constitutional court of the state;
5. in the other instances provided for in this Basic Law.

Also, article 93 provides that any court, as part of its proceedings, may request the
Federal Constitutional Court or the appropriate land court to review a particular statute's
constitutionality or compatibility with applicable international law.

[edit] Similar judicial reviews

The Austrian-German concept of the Constitutional Court inspired a number of new

democracies in their respective constitutional reviews. Similar judicial review applies to a
number of European countries where there is a traditional intellectual influence from the
German jurispudence (Bulgaria, Latvia, Lithuania, Macedonia); which had a common
constitution with Austria in the past (Bosnia and Herzegovina, Croatia, Hungary,
Slovenia, Slovakia) and in a number of countries which found this constitutional
innovation useful (See List of constitutional courts).

[edit] Judicial review in France

Judicial review in France is performed by the Constitutional Council. Article 61 of the

Constitution of France states that all organic laws, as well as those proposed statutes that
garner sufficient parliamentary opposition (in practice, most of them do) must pass before
it at the end of the legislative process. The Constitutional Council can strike down the
controversial bill in full or in part, and its decisions cannot be appealed.

The problem with this mechanism is that in France, the Constitutional Council is the only
judicial body having authority for judicial review. It cannot be seized by ordinary
citizens, who also cannot invoke unconstitutionality of a law as a defense. This means
that unconstitutional laws cannot be fought anymore if they somehow evade the
Constitutional Council (for instance, if it is not seized by the Parliament during the one-
month delay allowed by the Constitution).

In practice, the French supreme courts who deal with individuals (Conseil d'état and
Cour de Cassation) do their best to interpret the law in a manner consistent with the
Constitution. In particular, French administrative law defines a category of case law
known as principles of constitutional value (principes à valeur constitutionnelle), such
as human dignity and continuity of the state, that rule over the executive branch of the
government even if the legislator omits to say so in statute law.

[edit] Judicial review in the Republic of Ireland

Judicial review in Ireland is a way for the High Court to supervise the Oireachtas to make
sure that legislation does not conflict with the Constitution.

[edit] Judicial review in Malaysia

Although Malaysia inherited the political system of British India based on the
Westminster system which made no provision for judicial review, the Constitution of
Malaysia instituted a system based on that of the United States. Judges were allowed to
declare laws or executive actions ultra vires if they clashed with the Constitution.
However, this power was curbed after the 1988 Malaysian constitutional crisis by then
Prime Minister Mahathir bin Mohamad. [1] The merits of detentions made under the
Internal Security Act are also not subject to judicial review, but the procedures are [2]

[edit] Judicial review in the Philippines

As early as 1936, the Philippine Supreme Court had unequivocally asserted its
constitutional authority to engage in judicial review. This power was affirmed in the
Supreme Court decision in Angara v. Electoral Commission, 63 Phil. 139 (1936), where
the Court clarified that "[w]hen the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; it does not in
reality nullify or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual controversy
the rights which that instrument secures and guarantees to them."

Nonetheless, the Supreme Court would, in the next several decades, often decline to
exercise judicial review by invoking the political question doctrine. This avoidance
became controversial during the martial law rule of President Ferdinand Marcos, where a
Supreme Court dominated by his appointees would refuse to nullify illiberal or
controversial decrees by simply referring to the political question doctrine.[3] After the
1986 ouster of Marcos and the abrogation of his constitution, the constitutional
convention tasked to draft a new charter decided to provide for a definition of “judicial
power” as a means of inhibiting the Court from frequent resort to the political question
doctrine. Hence, Section 1, Article VIII of the 1987 Constitution states in part that:

Judicial power includes the duty of courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
government.

Since 1987, the Supreme Court has cited this provision to counter arguments raised by
party-litigants that the Court should refrain from exercising judicial review.

[edit] Judicial review in Scotland

The power of judicial review of all actings of administrative bodies or courts in Scotland
(and even in theory of the Scottish Parliament) is held by the Court of Session. The
procedure is governed by Chapter 58 of the Rules of Court, although there are special
rules for some categories of cases such as statutory review of the Asylum and
Immigration Tribunal. There are no time limits on seeking judicial review, although if
proper administration is prejudiced by delay the court may in its discretion refuse to grant
it. In general, judicial review is available for any error of law by an administrative body,
but it is sometimes possible to seek judicial review simply on the basis that the decision
was entirely unreasonable, ignored known facts, or took irrelevant material into account.
About six hundred judicial review cases are brought every year; most of these are settled
by agreement and only a small minority have to be decided by the court. There is a full
discussion on this site.

[edit] Judicial review in Switzerland

Article 191 of the Swiss Federal Constitution states that federal statutes and international
law are binding on the Federal Supreme Court. In consequence, the courts are not
empowered to review the constitutionality of federal statutes, but will, where possible,
construe statutes so as not to create a conflict with the Constitution. The courts can
suspend the application of federal statutes that conflict with international law, but tend to
exercise this power cautiously and deferentially: In Schubert (BGE 99 Ib 39), the Federal
Supreme Court refused to do so because Parliament had consciously violated
international law in drafting the statute at issue.

The reason traditionally given for the lack of judicial review is the Swiss system of
popular democracy: If 50'000 citizens so demand, any new statute is made subject to a
popular referendum. In this sense, it is the people themselves that exercise judicial
review.

The situation described above for Swiss federal law applies mutatis mutandis to the
constitutional and legal systems of the individual cantons. However, owing to the
derogatory power of federal law, federal courts as a matter of course exercise judicial
review on cantonal law, as well as on federal executive law (ordinances, executive orders
etc.).

[edit] Judicial review in the United States

Courts in the United States have the power of judicial review. This power is based
fundamentally on the tripartite nature of governmental power as enunciated in the United
States Constitution. [4] The Constitution states in Article III that:

"The judicial Power of the United States, shall be vested in one supreme Court,
and in such inferior Courts as the Congress may from time to time ordain and
establish… The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution…"

[edit] Administrative Review

The procedure for judicial review of federal administrative regulation in the United States

[edit] Constitutional Review

The power to strike down laws is not specifically listed, but is an implied power derived
from Article III just quoted, and from Article VI which declares that the Constitution is
the supreme law of the land binding upon judges by oath. No state or federal law is
allowed to violate the U.S. Constitution. The ultimate court for deciding the
constitutionality of federal or state law under the Constitution of the United States is the
Supreme Court of the United States. The doctrine of judicial review was first announced
as part of federal law in 1803, by the Supreme Court decision Marbury v. Madison.
The ultimate court for deciding the constitutionality of state law under state constitutions
is always the highest state appellate court, whose judgments are final in the absence of a
federal question. This court is usually called a supreme court, but sometimes known as a
court of appeals. Even before Marbury, the doctrine of judicial review was specifically
enshrined in some state constitutions, and by 1803 it had been employed in both state
courts and federal courts in actions dealing with state statutes.

In the federal system, courts may only decide actual cases or controversies; it is not
possible to request the federal courts to review a law without at least one party having
legal standing to engage in a lawsuit. This principle means that courts sometimes do not
exercise their power of review, even when a law is seemingly unconstitutional, for want
of jurisdiction. In some state courts, such as the Massachusetts Supreme Judicial Court,
legislation may be referred in certain circumstances by the legislature or by the executive
for an advisory ruling on its constitutionality prior to its enactment (or enforcement).

The Court seeks to avoid reviewing the Constitutionality of an act where the case before
it could be decided on other grounds. Justice Brandeis framed it thus:

The Court developed, for its own governance in the cases confessedly within its
jurisdiction, a series of rules under which it has avoided passing upon a large part
of all the constitutional questions pressed upon it for decision. They are:
(1) The Court will not pass upon the constitutionality of legislation in a friendly,
nonadversary, proceeding, declining because to decide such questions is
legitimate only in the last resort, and as a necessity in the determination of real,
earnest, and vital controversy between individuals. It never was the thought that,
by means of a friendly suit, a party beaten in the legislature could transfer to the
courts an inquiry as to the constitutionality of the legislative act.
(2) The Court will not anticipate a question of constitutional law in advance of the
necessity of deciding it. It is not the habit of the court to decide questions of a
constitutional nature unless absolutely necessary to a decision of the case.
(3)The Court will not formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied.'
(4)The Court will not pass upon a constitutional question although properly
presented by the record, if there is also present some other ground upon which the
case may be disposed of . . . [I]f a case can be decided on either of two grounds,
one involving a constitutional question, the other a question of statutory
construction or general law, the Court will decide only the latter.
(5) The Court will not pass upon the validity of a statute upon complaint of one
who fails to show that he is injured by its operation.
(6) The Court will not pass upon the constitutionality of a statute at the instance of
one who has availed himself of its benefits.
(7) When the validity of an act of the Congress is drawn in question, and even if a
serious doubt of constitutionality is raised, it is a cardinal principle that this Court
will first ascertain whether a construction of the statute is fairly possible by which
the question may be avoided.
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-9 (1936) (Brandeis,
concurring) (citing cases) (internal quotation marks omitted).

[edit] Pros and cons

Although judicial review has become an established part of constitutional law in the
United States, some people disagree with the doctrine, or believe that it is
unconstitutional since it is not specifically spelled out in the Constitution.

The Virginia Constitution of 1776 states, "All power of suspending laws, or the execution
of laws, by any authority, without consent of the representatives of the people, is
injurious to their rights, and ought not to be exercised."

In a letter to William C. Jarvis in 1820, Thomas Jefferson wrote:

To consider the judges as the ultimate arbiters of all constitutional questions [is]
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
privilege of their corps… and their power the more dangerous as they are in
office for life and not responsible, as the other functionaries are, to the elective
control. The Constitution has erected no such single tribunal, knowing that to
whatever hands confided, with the corruptions of time and party, its members
would become despots. It has more wisely made all departments co-equal and co-
sovereign within themselves.

The origins of judicial review in the United States can be traced back to the
Constitutional Convention and the Virginia Plan's "council of revision", which included
the Supreme Court, that would examine proposed new laws and could accept or reject
them. However, under this system, the legislature could pass a bill over the council's
veto. By August 27, 1787 this plan had been dropped. James Madison, the author of the
Virginia plan, stated in his notes on the convention that:

he [Madison, for he always referred to himself in the third person] doubted

whether it was not going too far to extend the jurisdiction of the Court generally
to cases arising under the Constitution and whether it ought not to be limited to
cases of a [j]udiciary [n]ature. The right of expounding the Constitution in cases
not of this nature ought not to be given to that [d]epartment.

Robert Yates, a delegate to the Constitutional Convention from New York, predicted
what would happen:

[I]n their decisions they will not confine themselves to any fixed established rules,
but will determine, according to what appears to them, the reason and spirit of
the constitution. The opinions of the supreme court, whatever they may be, will
have the force of law; because there is no power provided in the constitution, that
 can correct their errors or control their adjudications. From this court there is no
appeal… They will be able to extend the limits of the general government
gradually, and by insensible degrees… one adjudication will form a precedent to
the next, and this to a following one.

Therefore, the Constitutional Convention, believing that the Supreme Court would abuse
their power, changed the "council of revision" into the Presidential veto.

Proponents of judicial review note that any government based on a written constitution
requires some mechanism to prevent laws from being passed that violate that
constitution. Otherwise, the document would be meaningless, and the legislature, with the
power to enact any laws whatsoever, would be the supreme arm of government. This
concept was laid out by Alexander Hamilton in Federalist No. 78:

If it be said that the legislative body are themselves the constitutional judges of
their own powers, and that the construction they put upon them is conclusive upon
the other departments, it may be answered, that this cannot be the natural
presumption, where it is not to be collected from any particular provisions in the
Constitution. It is not otherwise to be supposed, that the Constitution could intend
to enable the representatives of the people to substitute their will to that of their
constituents. It is far more rational to suppose, that the courts were designed to be
an intermediate body between the people and the legislature, in order, among
other things, to keep the latter within the limits assigned to their authority. The
interpretation of the laws is the proper and peculiar province of the courts. A
constitution is, in fact, and must be regarded by the judges, as a fundamental law.
It therefore belongs to them to ascertain its meaning, as well as the meaning of
any particular act proceeding from the legislative body. If there should happen to
be an irreconcilable variance between the two, that which has the superior
obligation and validity ought, of course, to be preferred; or, in other words, the
Constitution ought to be preferred to the statute, the intention of the people to the
intention of their agents.

[edit] Standard of review

In the United States, unconstitutionality is the only ground for a federal court to strike
down a federal statute. Justice Washington, speaking for the Marshall Court, put it this
way in Satterlee v. Matthewson, 27 U.S. 380 (1829):

We intend to decide no more than that the statute objected to in this case is not repugnant to the
Constitution of the United States, and that unless it be so, this Court has no authority, under the
25th section of the judiciary act, to re-examine and to reverse the judgment of the supreme court
of Pennsylvania in the present case.

If a state statute conflicts with a valid federal statute, then courts may strike down the
state statute as a violation of the Supremacy Clause. But a federal court may not strike
down a statute absent a violation of Federal law or of the federal Constitution.
Moreover, a suspicion or possibility of unconstitutionality is not enough for American
courts to strike down a statute. Alexander Hamilton explained in Federalist 78 that the
standard of review should be "irreconcilable variance" with the Constitution.
Antifederalists agreed that courts would be unable to strike down federal statutes absent a
conflict with the Constitution. For example, Robert Yates, writing under the pseudonym
"Brutus", asserted that "the courts of the general government [will] be under obligation to
observe the laws made by the general legislature not repugnant to the constitution." [5]

These principles --- that federal statutes can only be struck down for unconstitutionality
and that the unconstitutionality must be clear --- were very common views at the time of
the framing of the Constitution. For example, George Mason explained during the
constitutonal convention that judges "could declare an unconstitutional law void. But
with regard to every law, however unjust, oppressive or pernicious, which did not come
plainly under this description, they would be under the necessity as Judges to give it a
free course." [6]

Until the twentieth century, judges usually adhered to this principle that a statute could
only be deemed unconstitutional in case of a clear contradiction. However, this
presumption of constitutionality weakened somewhat during the twentieth century, as
exemplified by the Supreme Court’s famous footnote four. Nevertheless, the federal
courts have not departed from the principle that courts may only strike down statutes for
unconstitutionality.

[edit] See also

 Judicial interpretation
 Marbury v. Madison

The origins of judicial review in the United States can be traced back to the
Constitutional Convention and the Virginia Plan's "council of revision", which included
the Supreme Court, that would examine laws and could accept or reject them.

[edit] Notes and references

1. ^ "Country Briefing: Malaysia". (Oct. 13, 2005). The Economist.
2. ^ "Malaysia: ISA Detainees Beaten and Humiliated". (Sept. 27, 2005). Human
Rights Watch.
3. ^ See J. Bernas, The 1987 Constitution of the Republic of the Philippines: A
Commentary (1996 ed.), at 831
4. ^ "The Establishment of Judicial Review". Findlaw.
5. ^ Brutus, no. 14 (28 Feb. -- 6 Mar. 1788)
6. ^ 2 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 78 (Max
Farrand ed., Yale Univ. Press 1927) (1911).
Retrieved from "http://en.wikipedia.org/wiki/Judicial_review"

Category: Court systems

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