Reflections on judicial review of legislation

Abstract

Part I: General Observations is mainly devoted to a discussion of several features of a constitution which very likely have a bearing on the exercise by the courts of their power to strike down acts of the legislature. First it is argued that the absence of a written constitution does not necessarily rule out the possibility of judicial review. But as today almost all countries do have written constitutions and because in England, the most notable exception, judicial review of Acts of Parliament does not exist, the article is subsequently confined to review of legislation in terms of written constitutions. (1-1) Subsequently, the operative quality of constitutional documents, their contents and wording, and their inner consistency are discussed as some of the factors which may ultimately determine the actual operation of judicial review. (1-2) It is then argued that although presumably the rigidity or flexibility of a constitution plays a role in the practice of judicial review, it is extremely hard to identify that role. (1-3) As to another traditional classification of constitutions, that into federal and unitary, the contention that federalism necessarily implies judical review of federal legislation is rejected. There is a brief discussion of the role of the American Supreme Court as an umpire of the federal system. (1-4) Next the ambiguity of the doctrine of separation of powers is demonstrated, and it is emphasized that no easy conclusions follow from it. (1-5) Finally there is a brief comment on the changing function of certain modern legislation in the light of its possible impact on judicial review. (1-6) Part II: Judicial Review in the U.S.A. does not deal with the constitutionality of judicial review, but takes it for granted in the form in which it has developed in America, to wit as judicial supremacy. (II-1) In a discussion of the scope of judicial review, neutrality in constitutional adjudication is considered an object which will never be completely attained, however much it should be pursued. (II-2) As to the democratic character of judicial review it is maintained that the system of checks and balances, which enables Congress and the President to bring a hostile Court into line, together with the statesmanship usually displayed by the members of the Supreme Court, has prevented the latter from operating as an undemocratic force. (IT3) The concluding pages deal with the relatively neglected area of the legal consequences of judicial invalidation. After some introductory remarks (II-4), the question is raised whether judicial invalidation operates as a repeal, and a distinction is then made between two different kinds of rulings of unconstitutionality: as applied or in toto. Only as to the latter kind of ruling can there be any question of its being equal to a repeal. (II-5) This distinction is further elaborated (II-6) and it is shown how it ties in with the so-called standing problem. (II7).