Posted tagged ‘judicial review’

Power to the judges

February 14, 2010

No doubt there are many people who think of February 14 principally as St Valentine’s day, and for them the theme of the day is defined by love poetry, red roses, quiet dinners and declarations of love. For those of a more sober disposition – and I won’t say here whether that applies to me – February 14 may be equally notable as the day on which the principle of judicial review of legislation based on constitutional law was proclaimed by the United States Supreme Court in the case of Marbury v. Madison in 1803. The effects of this case were and still are profound, and have determined the nature of law in a significant number of democratic countries, though not without controversy.

The facts of the case, at least in the detail, were complex and don’t need to be explained here in any detail. But the key issue was whether the Court could, in considering the application of a particular statute (in this case the Judiciary Act 1789), determine that it was incompatible with the United States Constitution and therefore did not have legal effect. The court (in a judgement read by Chief Justice John Marshall) set out the issue as follows:

‘The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.’

For the Court, a lot hinged on the requirement for judges in their oath of office to declare that they will uphold the constitution. If they found a law that was incompatible with the constitution, then their oath would require them, they found, to give precedence to the constitution. The Court concluded:

‘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.’

Thomas Jefferson, then President of the United States, criticised the decision and declared that the principle of judicial review of legislation would place the country under the ‘despotism of an oligarchy’. In other words, as constitutions need to be interpreted and because their meaning may not always be plain, judges will have to interpret constitutional provisions and, on the back of their interpretations, may invalidate legislation passed by the elected parliament.

The principle of judicial review of legislation has also been adopted by the Irish courts under the 1937 Constitution, Bunreacht na hEireann. Indeed the Irish courts have stepped beyond what was decided in the United States and have held that the Constitution contains ‘unspecified rights’ which are not enumerated or made explicit but which judges may nevertheless use to invalidate legislation. All this made the Irish courts the authors of significant social reforms, particularly during the 1960s and 1970s, for example legalising contraception when the government was unwilling or unable to do so. While one might welcome the reforms, one might still want to ask whether unelected judges should be allowed to determine such wide-ranging changes to law.

On the other hand, judicial review is a potentially strong defence against tyranny, and against the possibility of parliament undermining or denying the rights of minorities.

There is probably no easy answer to this issue, but for better or for worse many of the stronger democracies hold to the principle of judicial review. And this being so, February 14 is one of the more important dates that define our concept of how a modern state is defined.