JUDICIAL review: Absent in US constitution, should it be in ours?

Some persons have purported to query the authenticity of Rajpal Abeynayake’s claim in his column on Friday in these pages, that Judicial Review of Legislation in the US is not part of the US constitution. Here, a writer extracts certain authoritative observations on that matter, together with his own comments. That judicial review is not part of the US Constitution is of course obvious.

Kamal Wickramasinghe

The United States Constitution does not explicitly establish the power of judicial review. Rather, the power of judicial review has been inferred from the structure, provisions, and history of the Constitution.

Prior to 1787, state courts in at least seven of the thirteen states had engaged in judicial review and had invalidated state statutes because they violated the state constitution. The most extensive discussion of judicial review was in Federalist No. 78, written by Alexander Hamilton, which clearly explained that the federal courts would have the power of judicial review.

The proposal known as the ‘Virginia Plan’ that included a ‘council of revision’ that included the president and some federal judges to examine proposed new federal laws was debated at the Constitutional Convention.

Section 25 of the Judiciary Act of 1789 incorporated the concept of judicial review by giving the Supreme Court the power to review state court decisions involving the constitutionality of both federal and state statutes.

However, the Constitution gave only limited ‘original jurisdiction’ to the Supreme Court.

The Judiciary Act therefore attempted to give the Supreme Court jurisdiction that was not ‘warranted by the Constitution.’

The Supreme Court’s landmark decision on the issue of judicial review was Marbury v. Madison (1803), written by Chief Justice John Marshall, was the first Supreme Court case to strike down an act of Congress as unconstitutional.

The Marbury case arose when William Marbury filed a lawsuit directly in the Supreme Court seeking an order (a ‘writ of mandamus’) requiring the Secretary of State, James Madison, to deliver to Marbury a commission appointing him as a justice of the peace.

The constitutional issue involved the question of whether the Supreme Court had jurisdiction to hear cases involving writs of mandamus under the powers granted by Judiciary Act of 1789.

James Madison

John Marshall

Marshall’s opinion stated that in the Constitution, the people established a government of limited powers: “The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.”

The limits established in the Constitution would be meaningless “if these limits may at any time be passed by those intended to be restrained.” Marshall observed that the Constitution is “the fundamental and paramount law of the nation”, and that it cannot be altered by an ordinary act of the legislature.

Marshall stated that the courts are authorised by the provisions of the Constitution itself to “look into” the Constitution, that is, to interpret and apply it, and that they have the duty to refuse to enforce any laws that are contrary to the Constitution.

Specifically, Article III provides that the federal judicial power “is extended to all cases arising under the Constitution.” Article VI requires judges to take an oath “to support this Constitution.”

Article VI also states that only laws “made in pursuance of the Constitution” are the law of the land. Marshall concluded:

“Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.”

Writers Comment: Marbury has long been regarded as the seminal case with respect to the doctrine of judicial review.

But Marshal’s interpretation of the law is based on circular argument and is based, not on written authority, but his own interpretation of events during the development of the Constitution: he asserted that judicial review was ‘acknowledged’ by the Constitution’s framers, and was explained in the Federalist Papers (78) and in the ratification debates, and was used by both state and federal courts for more than twenty years before Marbury.

Marshall then applied the circular argument that it would be an ‘absurdity’, to require the courts to apply a law that is void. Rather, it is the inherent duty of the courts to interpret and apply the Constitution, and to determine whether there is a conflict between a statute and the Constitution.

It is clear that Marshall was on the side of the privileged classes who fought to limit the powers of the legislature which is fundamentally undemocratic. The US still suffers from this malaise, with racial and other discriminations with power essentially vested in the rich and powerful.