History
The Role of Judiciary in Constitutional Review
Quick fact
In 1803, the U.S. Supreme Court established its power to strike down laws as unconstitutional in Marbury v. Madison, a power not explicitly written in the Constitution. This principle is now known as judicial review.
Why this is interesting
What happens when a law passed by an elected parliament violates the constitution? Who has the power to stop it? The answer lies in the judiciary's role in constitutional review.
Read the full explanation
Understanding The Role of Judiciary in Constitutional Review
Imagine a game where the rules are set by a referee, but the players also make new rules during the game. If a player-made rule contradicts the original rules, who decides? In a country, the constitution is the supreme rulebook, but the legislature makes new laws. The judiciary—the courts—act as the referee. When a court reviews a law, it checks whether the law complies with the constitution. If it does not, the court declares it void. This process is called judicial review. For example, if a legislature passes a law that limits freedom of speech, a citizen can challenge it, and a court can decide if that law violates the constitutional guarantee. Without this power, the constitution would be toothless, as the government could pass any law regardless of constitutional limits.
A deeper explanation
The mechanism of judicial review rests on the principle of constitutional supremacy: the constitution is the highest law, and all other laws must conform to it. Courts, as impartial interpreters, apply legal reasoning to determine constitutionality. This involves interpreting the constitution's text, intent, and principles. The power is not unlimited—courts typically only decide cases brought before them, not hypothetical ones. Moreover, courts must give reasons for their decisions, which creates precedent for future cases. The importance of judicial review is that it protects minority rights from majority tyranny, ensures that all branches of government operate within their bounds, and maintains the rule of law. It also fosters a dialogue between the judiciary, legislature, and executive, as a struck-down law can be revised or a constitutional amendment sought. In many countries, judicial review is central to a system of checks and balances, though the exact scope varies (e.g., strong review in the U.S., weaker in some European systems).