Judicial Review

The term judicial review refers to the practice of judges deciding whether or not to declare void a statute or an executive order on the grounds of conflict with a higher law. This entry first describes two sorts of judicial review and also the political logic by which the institution of judicial review is criticized and that by which it is defended. It then discusses the history of the adoption and spread of the practice of judicial review. Finally, it describes the kinds of judicial review that are now prevalent in the world.

When the judge declares void an order from an executive branch official on the grounds that the official has transgressed the bounds of his or her statutory authority, the practice of judicial review is not particularly controversial. It is necessitated by the idea that the rule of law is preferable to the unchecked rule of individual will. (This version is sometimes called administrative review to distinguish it from the review of the statutes themselves.) A judicial power to declare void the acts of elected legislatures, however, is more controversial, especially in systems where judges are not elected. The criticism of this sort of higher law judicial review is that it substitutes the will of non–electorally accountable persons for the will of the people's elected representatives. The defense of it relies on the premise that the legislators will not be inclined to police themselves to stay within the constitutional bounds of their authority and on the premise that persons independent of political pressures and incentives and trained in the law—judges—will be able to uphold better the legal limits on governmental power.

Judicial review began in the courts of American states under the Articles of Confederation, perhaps influenced by the fact that the British Privy Council had wielded a veto power over colonial legislation; at first, the practice aroused considerable opposition. At that time, most of the states had constitutions written and adopted by the legislature, so judges looked to natural law or the law of nations [Page 1373]or Anglo-American common law for the higher law to which they claimed statutes must conform. Some opposing attorneys argued that an appeal beyond statutes was illegitimate, and some judges on the bench made similar claims. It also provoked popular mass protest meetings, legislative censures, attempts to outlaw it, and serious efforts to impeach judges for engaging in it.

A man named Thomas Tudor Tucker, writing in 1784 under the pen name of Philodemus (friend of the people, in Greek), in a pamphlet titled “Conciliatory Hints,” developed the idea that the legislatively adopted constitution of his state, South Carolina, should be replaced by one written by a constitutional convention specially elected by the people and that the people should ratify it in an election, thereby giving their express consent. More over, the constitution should state that it is paramount to ordinary legislation and not changeable merely by the legislature. Finally, and crucially, Tucker suggested that a peaceful rather than violent solution to abuses of power by legislatures would be to have the constitution state that no act of the legislature contravening it can be valid, and this declaration could be enforced in the courts of law. Thus was born the system of judicial review for safeguarding a popularly ratified constitution as higher law.

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