Judicial review refers to the power of a court to strike down any legislative or executive action that it finds in violation of a nation’s constitution or other law. In its narrowest sense, judicial review refers to a court’s power to declare laws unconstitutional. For example, if the United States Congress were to pass a law forbidding criticism of public officials, a court would find that the law violates the right of freedom of speech. That right is set forth in the First Amendment of the Constitution. By striking down the law, the court would be exercising the power of judicial review. Constitutional democracies worldwide accept the judicial review process. Most constitutions written since World War II (1939-1945) specifically provide for some form of judicial review.
The Supreme Court of the United States established the power of judicial review in the landmark case of Marbury v. Madison (1803). The case marked the first time the Supreme Court declared an act of Congress unconstitutional. Because the Constitution itself does not specifically grant courts this authority, the court needed to justify its decision. Chief Justice John Marshall reasoned that, for constitutional limits on the power of the legislative branch to have any significant effect, there must be a method of enforcement. Some other branch of government must have the authority (1) to issue authoritative interpretations of the Constitution; (2) to decide whether an act of the legislative branch violates the Constitution; and (3) to declare any such act unconstitutional. Marshall further concluded that the judicial branch, as the branch generally responsible for interpreting the law, is the proper holder of this authority.
Many cases of judicial review resemble the Marbury case itself. In such cases, courts specifically determine whether a law is consistent with a nation’s constitution. In other cases, courts determine whether the rules and regulations made by executive agencies are valid. In such complex areas as tax law and environmental protection, for example, legislators may lack the time or the technical background to legislate every detail of the necessary rules. Therefore, governments often call upon expert agencies to develop and enforce detailed rules and regulations. In the United States, such agencies include the Internal Revenue Service and the Environmental Protection Agency. Judicial review in such cases ensures that agencies stay within the boundaries set by law.
Disputes regarding the proper use of judicial review continue to this day. When used properly, judicial review guarantees that a nation’s constitution and other laws are honored. If courts use this power too aggressively, however, they may interfere with lawmaking processes reserved for elected legislators. An overly aggressive use of judicial review may also interfere with regulatory functions assigned to expert executive agencies.
