Dr. Almon Leroy Way, Jr.

University President & Professor of Political Science






In any constitutional system, the lines of demarcation between governmental action allowed and governmental action prohibited by the Constitution are sufficiently hazy, or blurred, to cause occasional disputes over whether particular decisions and actions of the government are constitutional or unconstitutional--disputes over whether the governmental decisions and actions accord with or violate the Constitution. If a society's political regime is to remain genuinely constitutional in character, the disputes over the boundaries between constitutionally permissible and constitutionally impermissible governmental activity must be settled peacefully, and hence there must be present political institutions whose legitimate functions include effective performance of this important type of conflict resolution. In most contemporary constitutional democracies, the function is performed by political parties and the legislature, generally through the parliamentary vote of no confidence and through the electoral process. In some of today's constitutional democratic societies--e.g.. the U.S.A., Canada, Australia, Germany, Austria, Italy, Norway, Japan, and the Republic of Ireland--one or more courts of law (either the regular courts or a special high court) play an important role in resolving constitutional boundary disputes, doing so through exercise of the power of judicial review. In the U.S.A., judicial review, exercised by the regular law courts, is the most important method of resolving controversy over the constitutional lines of demarcation between permissible and impermissible action on the part of the legislature; disagreements over the boundaries between what the government may do and what it may not do under the Constitution are resolved by the courts rendering judicial decisions which authoritatively determine the meaning and intent of the relevant provisions of the Constitution.

What is judicial review? What is its relevance to statutes enacted by the legislature? What is the role of judicial review in the American constitutional system? As regards judicial review, how does the contemporary British constitutional system differ from the American system? What is meant by "legislative supremacy," or "parliamentary supremacy"?

1. The Nature of Judicial Review:

Judicial Review--A Definition. Joseph Tanenhaus defines "judicial review" as "the process whereby a judicial body determines the constitutionality of activity undertaken by a country's national legislature and by its chief executives." According to Tanenhaus, "a judicial body's refusal to enforce or otherwise legitimize official conduct constitutes judicial review only when the ground for doing so is that the country's constitution has been violated." [Note 1] The power of judicial review is exercised by a court of law when it invalidates (i.e., nullifies, or sets aside) a statute of the legislature or an action of the executive and bases the court decision on a finding that the legislative statute or executive action in question is contrary to one or more provisions of the Constitution and therefore cannot be upheld or enforced.

Judicial Review and Statutes of the Legislature. Judicial review involves, most importantly, the authority of a law court to invalidate--to nullify, set aside, or veto--a statute which the legislature has enacted and which, in the opinion of the judges of the court, violates the Constitution. In reviewing the legislative statute, the court passes on its constitutional validity, rendering a decision as to whether or not the statute is in harmony with the provisions of the Constitution. If the court finds that the act of the legislature is in conflict with the Constitution, the court declares the legislation unconstitutional and null and void (of no force and effect). Treating the Constitution as a law superior to and taking precedence over all ordinary laws (i.e., the statutes, the laws enacted by the legislature), the court upholds the superior, or higher, law of the Constitution and rules out enforcement of the statute which the court deems to be unconstitutional. The court's interpretation of the relevant provision or provisions of the Constitution--the judges' determination of the meaning and intent of the constitutional provisions--prevails over the opinion and action of a majority in the legislature. In other words, operation of the principle of judicial review in a political society's constitutional system means that a decision of a judicial body may override and abrogate a decision of the legislature; a court decision interpreting the Constitution can revoke a law enacted by the legislature.

2. The American Constitutional System--Operation of the Principle of Judicial Review:

Exercise of the power of judicial review by the courts of law is a very important part of the American constitutional system and is strongly supported by American political culture. Judicial review, though not mentioned in so many words in the Federal Constitution, is widely recognized and accepted as an integral part of what is described in Article III of the U.S. Constitution as "the judicial power of the United States," extending to "all Cases, in Law and Equity, arising under this Constitution [of the U.S.A.], the Laws of the United States, and Treaties made ... under their Authority," and vested by the Constitution in the U.S. Supreme Court and in "such inferior [lower] Courts as the Congress may from time to time ordain and establish." A basic political belief, or perception, widely shared by Ameri- cans is the assumption that the power of a law court to invalidate a legislative statute or an executive decision or action, on the ground that it violates the Constitution, is a legitimate and inseparable component of the judicial authority of the court--its authority to contrue, or interpret, the relevant law in a legal case or controversy brought before the court for trial and judgement. According to this fundamental perception, (1) the Constitution is a law--the basic and supreme law of the land, (2) the authority of a court to construe all aspects of the law that are relevant to a case or controversy before the court includes, most importantly, the right and duty to interpret any provisions of the Constitution which are relevant to the case or controversy, and (3) the authority of the court to interpret constitutional provisions relevant to the case or controversy entails the right and obligation to compare these provisions of the basic law with the relevant decisions and actions of the legislative and executive branches of government and, if the latter are in conflict with the former, to uphold the basic and supreme law of the land and decline to enforce or allow implementation of the unconstitutional policies of the legislature and the executive.

In the U.S.A., the power of judicial review is exercised by the ordinary courts of law, not by a specialized tribunal, like Germany's Federal Constitutional Court, which was constitution- ally ordained and established with exclusive authority to resolve questions regarding the federal constitutionality of acts of the legislature and decisions and actions of the execu- tive. Ordinary law courts in the U.S.A. exercise the power of judicial review during the course of their performance of the traditional judicial function--resolving legal disputes through authoritative determination of (1) the meaning and intent of established principles and rules of law and (2) the application of these general principles and rules to the special situations with which particular legal cases and controversies are concerned. The authority of American courts, unlike that of the law courts in Great Britain, is not limited to settling legal disputes between private parties, ascertaining and protecting the rights of citizens under common and statutory law, ruling on the statutory authority for specific decisions and actions of administrative officials, and reshaping existing law and public policy through creative interpretation of statutes enacted by the legislature. American courts can and do go behind legislative statutes, considering and deciding questions regarding the constitu- tional authority of the legislature to enact the statutes. When an American court, in deciding a case, rules that, under the Constitution, the legislature lacked the authority to pass a law which is still in existence and which happens to be relevant to the case at hand, the court not only refuses to enforce the statute but also forbids implementation of the statute by the executive and administrative offices of government.

All federal and state courts in the U.S.A. exercise the power of judicial review. However, state and lower federal court decisions resolving federal constitutional questions are sub- ject to review by the United States Supreme Court, which may uphold, modify, or overturn any of these decisions. The U.S. Supreme Court is supreme in interpreting the Constitution of the United States. Its authority to review and then affirm, alter, or reverse the rulings of other courts on federal constitutional questions makes the Federal Supreme Court the highest and final judicial authority in the U.S.A.--the highest and final decisionmaker in the adjudication of legal cases and controversies involving questions as to the federal constitu- tionality of decisions and actions of America's national, state, and local governments. A decision of the U.S. Supreme Court interpreting the Federal Constitution cannot be modified or reversed by any other judicial body. There are only two ways such a decision of the Supreme Court can be changed: (1) The Court changes it mind on a point of law it established in an earlier case, reversing itself in a later case concerned with a federal constitutional issue identical or very similar to the issue dealt with in the earlier case. (2) Congress or a Federal Constitutional Convention proposes and at least three-fourths of the states approve an amendment to the U.S. Constitution which has the effect of rescinding or substantially modifying the Supreme Court's decision.

Tanenhaus points out that American courts, in exercising the power of judicial review, play "a major role in defining and maintaining the boundaries separating legitimate govern- mental action from that which is constitutionally proscribed." [Note 2] American courts, especially the U.S. Supreme Court, function as guardians of the Federal Constitution. American courts perform this function in legal cases and controversies coming before them for hearing and judgement, upholding legislative statutes and other governmental decisions and actions which the courts find to be in accord with the Constitution and nullifying those which they find to be in violation of the basic law.

3. The British Constitutional System--Legislative Supremacy and Absence of Judicial Review:

The contemporary British constitutional system is based on the principle of legislative supremacy, or parliamentary supremacy. Parliament can enact any statute it wishes, in- cluding one affecting significantly the fundamental character of Great Britain's govern- mental system and therefore amounting to a major amendment to the British Constitution. In law and theory, Parliament can do this either by simple majority vote in each of its two chambers or by simple majority vote in the House of Commons to override the objections of the House of Lords to the legislation. In short, Parliament--ultimately, the House of Commons--possesses the right of final decision as to whether or not a proposed statute will be enacted into law, even a statute of such importance that, after parliamentary passage, it attains constitutional status.

In contrast, the American Congress cannot amend the U.S. Constitution by simple majority vote in the Senate and House of Representatives. For an amendment to be added to the U.S. constitution, the amendment must be (1) formally proposed by at least a two-thirds vote in each of the two chambers of Congress, or by majority vote in a Federal Constitu- tional Convention called by Congress on petition of state legislatures in not less than two- thirds of the states, (2) submitted to the states of the Union for their consideration, and (3) ratified by state legislatures or popularly elected state conventions in at least three-fourths of the states. Thus, the process of amending the basic law of the land is much more in- volved and difficult in the U.S.A. than it is in the United Kingdom. Amending the Constitu- tion requires the support of an extraordinary majority in the U.S.A., but such action in Britain, at least on the surface, requires merely the approval of a simple majority in Parliament. While Parliament is supreme in the British constitutional system, Congress is by no means supreme in the American system.

In Britain, the threat of legislative dictatorship or majoritarian tyranny inherent in parlia- mentary supremacy is, to a significant extent, mitigated by three conditions: (1) The legis- lative activity of Parliament is subject to self-imposed limitations--restrictions which each Parliament imposes on its decisionmaking authority through its adherence to the conven- tions of the British Constitution. (2) No statute effecting a major change in Britain's Con- stitution has ever been--and probably never can be--enacted by a very slim parliamentary majority or without full and prolonged debate on the bill. (3) The British electoral system and competition among rival political parties place some very real practical political limitations on the degree to which Parliament can act contrary to the basic values, norms, and beliefs comprising Britain's political culture and therefore on the types of legislation that Parliament can pass. Legally and technically speaking, however, Parliament has unlimited authority to pass any statute it pleases.

Hence, judicial review is not a part of the British constitutional system. In the United King- dom, the courts of law lack the authority to review acts of Parliament and rule on their constitutional validity. No British court possesses the power to declare a parliamentary statute unconstitutional and set it aside.

The British courts, in hearing and judging legal cases and controversies brought before them, review the actions of executive and administrative officials, inquiring into and rendering decisions regarding the legality of these governmental actions. The courts do this when engaged in the act of determining and protecting the rights of British subjects under parliamentary statutes and under those aspects of the Common Law that have not been superceded by statutory enactments. Court review of governmental actions also occurs when the courts entertain and answer questions concerning the statutory authority of actions taken by executive and administrative officials. When dealing with the question of the statutory authority of an executive or administrative action, a court must determine whether the authority delegated by the statute to the executive or administrative office is broad enough to cover the particular action which the office has taken and which is being questioned in the case before the court. If the statutory grant of authority is found to be insufficient, the British court, like an American court, invokes the doctrine of ultra vires: (1) Any action of a governmental executive or administrative office or agency exceeding the authority assigned to it by statute is, by definition, unlawful. (2) Ergo, the coercive powers of government cannot legally be employed to carry out, or enforce, the executive or administrative decision or rule. In invoking the doctrine of ultra vires, the court declares the agency or office to be acting ultra vires, i.e., acting beyond its legal powers. The court orders the agency or office to cease its unlawful action and grants appropriate relief to the aggrieved party or parties to the case.

While a British court may review an executive or administrative action and rule on its statutory authority, the court cannot rule on the constitutional authority of Parliament to enact a statute. The court may declare an executive or administrative action unlawful and set it aside, on the ground that the action violates one or more statutory provisions or the agency or office, in taking the action, exceeded its authority under the statute. The court, however, cannot declare a legislative stature unconstitutional and null and void, on the ground that the statute violates the Constitution or that Parliament, in passing the stature exceeded its authority under the Constitution.

The British Constitution is not--and has never been--conducive to development and legitimization of the doctrine of judicial review. The content of the British Constitution, many parts of which are unwritten, has never been precisely defined or delimited. There in no single body of clearly recognizable and relatively stable, written basic law--called "the Constitution"--to which an attorney representing a party to a legal case or controversy can refer in order to make points in his argument challenging or defending the constitutionality of a statute, or to which a court can refer in deciding on the constitutional validity of a statute, thereby resolving the issue through an authoritative interpretation of the relevant provision or provisions of the Constitution. The Constitution is subject to change and development as Parliament carries on the ordinary process of enacting legislative statutes and as the basic political values, norms, and beliefs of the general populace and leadership elites are modified and molded by changing conditions and problems in British society. The Constitution is changed when Parliament enacts statutes impacting significantly on the basic character of Britain's political regime--statutes which are not likely to be enacted without supportive changes and developments in British political culture. The Constitution is also modified when unwritten customs, traditions, usages, and conventions governing operation of the governmental system undergo change. The Constitution is an evolving body of written and unwritten law, evolving as Parliament enacts statutory legislation which attains constitutional status and as the unwritten parts of the Constitution gradually develop and change. Hence, there is no place for determination by a judicial body of the constitutionality of parliamentary legislation.

Parliament, functioning in a constitutional system based on the principle of legislative supremacy, has the power of final decision regarding the content of the British Constitution and the correct interpretation of any written or unwritten part of that body of fundamental law. It is the function of Parliament, rather than that of the courts of law, to serve as guardian of the Constitution. Parliament is the guardian of the British Constitution as well as the supreme legislative and executive authority in the United Kingdom.

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