When Was The Judicial Review Established

Navigating the complexities of government and ensuring that power remains accountable is a cornerstone of any thriving democracy. One of the most crucial mechanisms for achieving this accountability is judicial review, the power of courts to examine the actions of the legislative and executive branches and invalidate them if they violate the constitution. Understanding when and how judicial review was established is critical to appreciating its profound impact on modern legal systems.

The journey towards the establishment of judicial review is not a simple, linear narrative. It’s a story woven with threads of historical precedent, philosophical debates, and political maneuvering. While the precise origin of judicial review is often debated, its evolution can be traced through various legal and political developments across centuries.

A Deep Dive into the Origins of Judicial Review

The concept of judicial review, in its essence, represents the idea that the judiciary has the authority to assess the legality and constitutionality of governmental actions. While the modern form of judicial review is often associated with the United States, its roots can be found in earlier legal and political thought.

Early Seeds of Judicial Authority:

The idea that legal principles could restrain governmental power is ancient. Philosophers like Aristotle emphasized the importance of the rule of law, suggesting that even rulers should be subject to legal constraints. In medieval England, figures like Henry de Bracton argued that the king was under God and the law. However, these early ideas were not directly equivalent to modern judicial review. They lacked the formalized system of courts actively striking down laws passed by the legislature.

• Bonham's Case (1610): This English case, presided over by Chief Justice Sir Edward Coke, is often cited as an early example of judicial reasoning that foreshadows judicial review. Coke argued that "when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the Common Law will control it, and adjudge such Act to be void." While this case is significant, its interpretation remains debated. Some argue it represents a form of judicial review, while others see it as merely an interpretation of statutes within the existing legal framework.
• Colonial America: The seeds of judicial review were also sown in Colonial America. Colonial courts sometimes reviewed laws passed by colonial legislatures, particularly when they conflicted with royal charters or English law. This practice, though limited, provided a precedent for the later development of judicial review in the United States.

The American Genesis: Marbury v. Madison (1803)

While earlier instances hinted at judicial authority, the landmark case of Marbury v. Madison in 1803, decided by the U.S. Supreme Court under Chief Justice John Marshall, is widely considered the foundational moment for modern judicial review. This case established the principle that the Supreme Court has the power to declare acts of Congress unconstitutional.

The Context of the Case:

The case arose from a political dispute between the outgoing Federalist administration of President John Adams and the incoming Democratic-Republican administration of President Thomas Jefferson. Adams had appointed William Marbury as a Justice of the Peace for the District of Columbia, but Marbury's commission was not delivered before Adams left office. Jefferson's Secretary of State, James Madison, refused to deliver the commission.

The Supreme Court's Decision:

Marbury petitioned the Supreme Court for a writ of mandamus, an order compelling Madison to deliver the commission. The Court, under Chief Justice Marshall, faced a complex dilemma. If it ordered Madison to deliver the commission and Madison refused, the Court's authority would be undermined. If it refused to issue the order, it would appear to concede to the Jefferson administration.

Marshall's genius lay in finding a third way. The Court held that Marbury was indeed entitled to his commission. However, it also ruled that the section of the Judiciary Act of 1789 that gave the Supreme Court original jurisdiction in cases like Marbury's was unconstitutional. This was because the Constitution defined the Supreme Court's original jurisdiction and Congress could not alter it.

The Significance of Marbury v. Madison:

• Establishment of Judicial Review: The case explicitly established the principle of judicial review in the United States. The Court asserted its right to declare an act of Congress unconstitutional, a power not explicitly mentioned in the Constitution.
• Supremacy of the Constitution: The decision affirmed the supremacy of the Constitution as the supreme law of the land. Any law conflicting with the Constitution was deemed invalid.
• Judicial Independence: Marbury v. Madison solidified the independence of the judiciary as a co-equal branch of government, capable of checking the power of the legislature and the executive.

The Evolution of Judicial Review Beyond the United States

While Marbury v. Madison is a pivotal moment, judicial review didn't remain confined to the United States. Its influence spread, adapting to different legal and political systems around the world.

Early Adoption in Other Nations:

• Canada: While not explicitly enshrined in its constitution, judicial review developed in Canada through common law principles. The Canadian Charter of Rights and Freedoms (1982) further strengthened the role of the judiciary in protecting individual rights and freedoms.
• Australia: The High Court of Australia has the power to interpret the Australian Constitution and review legislation. Similar to the United States, this power is implied rather than explicitly stated in the constitution.

The Post-World War II Era and Constitutional Courts:

The aftermath of World War II saw a surge in the adoption of judicial review, particularly in Europe. The experience of authoritarian regimes highlighted the need for strong constitutional safeguards and independent judiciaries. This led to the establishment of constitutional courts in many countries.

• Germany: The German Federal Constitutional Court (Bundesverfassungsgericht), established in 1951, is a powerful court that plays a crucial role in protecting fundamental rights and ensuring the constitutionality of laws.
• Italy: The Italian Constitutional Court (Corte Costituzionale), established in 1948, is responsible for reviewing the constitutionality of laws and resolving conflicts between the state and regional governments.

Different Models of Judicial Review:

It's important to recognize that judicial review takes different forms in different countries.

• American Model (Diffuse Review): In the American model, any court can rule on the constitutionality of a law. However, the Supreme Court's decisions are binding on all other courts.
• European Model (Concentrated Review): In the European model, a specialized constitutional court is responsible for reviewing the constitutionality of laws. This model is often seen as providing greater expertise and consistency in constitutional interpretation.

Challenges and Criticisms of Judicial Review:

Despite its importance, judicial review is not without its critics. Some argue that it is undemocratic, as it allows unelected judges to overturn the decisions of elected representatives. Others argue that it can be used to advance particular political agendas.

• The Counter-Majoritarian Difficulty: This is a central critique of judicial review. It questions the legitimacy of allowing judges, who are not directly accountable to the electorate, to invalidate laws passed by democratically elected legislatures.
• Judicial Activism vs. Judicial Restraint: This debate centers on the appropriate role of judges. Judicial activists believe that judges should actively use their power to correct injustices and promote social change. Judicial restraintists believe that judges should defer to the elected branches of government and only strike down laws that are clearly unconstitutional.

Current Trends and Future Directions

Judicial review continues to evolve in the 21st century, facing new challenges and opportunities.

Globalization and International Law:

The increasing interconnectedness of the world has led to greater interaction between national legal systems and international law. Courts are increasingly asked to consider international human rights norms and treaties when interpreting their own constitutions.

The Rise of Populism and Authoritarianism:

In recent years, there has been a rise in populism and authoritarianism in many countries. This has led to challenges to judicial independence and attempts to weaken judicial review.

The Role of Technology:

Technology is also shaping the future of judicial review. Courts are grappling with issues such as data privacy, freedom of speech online, and the use of artificial intelligence in legal decision-making.

FAQ: Frequently Asked Questions About Judicial Review

• Q: What is judicial review?
  • A: Judicial review is the power of courts to examine the actions of the legislative and executive branches of government and invalidate them if they violate the constitution.
• Q: Where did judicial review originate?
  • A: While the concept has roots in earlier legal thought, the modern form of judicial review is generally traced to the U.S. Supreme Court case Marbury v. Madison (1803).
• Q: Is judicial review explicitly mentioned in the U.S. Constitution?
  • A: No, the Constitution does not explicitly grant the power of judicial review. It was established through the Supreme Court's interpretation of the Constitution in Marbury v. Madison.
• Q: What are the different models of judicial review?
  • A: The two main models are the American model (diffuse review), where any court can rule on constitutionality, and the European model (concentrated review), where a specialized constitutional court has this power.
• Q: What are some criticisms of judicial review?
  • A: Common criticisms include the "counter-majoritarian difficulty" (the idea that it's undemocratic for unelected judges to overturn the decisions of elected officials) and concerns about judicial activism.
• Q: How does judicial review differ in different countries?
  • A: The structure, scope, and intensity of judicial review vary widely across countries, depending on their legal traditions, constitutional frameworks, and political contexts.

Conclusion

The establishment of judicial review is a complex and multifaceted story. From its early roots in legal and philosophical thought to its formal articulation in Marbury v. Madison and its subsequent adoption and adaptation around the world, judicial review has become a cornerstone of modern constitutionalism. It serves as a vital check on governmental power, protecting individual rights and upholding the rule of law.

However, judicial review is not without its challenges and critics. The debate over its legitimacy and appropriate role continues to this day. As societies grapple with new challenges and evolving legal landscapes, the future of judicial review will depend on how these debates are resolved and how courts adapt to the changing world.

What are your thoughts on the balance between judicial power and democratic governance? Do you believe judicial review is essential for protecting rights, or does it undermine the will of the people?