VII
JUDICIAL REVIEW: I THE SUPREME POWER

DEFINING JUDICIAL REVIEW

Certainly the most controversial and at the same time the most fascinating role of the courts of the United States in general, and of the Supreme Court in particular, is the exercise of the power of judicial review. It is commonly viewed with almost equal amounts of reverence and suspicion. Edward S. Corwin regarded it as "democracy's way of covering its bet."1 In its full majesty and range it is a power that the ordinary courts -- i.e. those that are part of the formal judicial hierarchy -- of merely a handful of other countries in the world possess with varying degree of effectiveness; among these are Australia, Brazil, Burma, Canada, India, Pakistan, and Japan, of whom most have federal systems of government.2 It is all but axiomatic that the practice would be found more readily in federal than in unitary states. Briefly stated, judicial review is the power of any court to hold unconstitutional and hence unenforceable any law, any official action based upon a law, and any other action by a public official that it deems -- upon careful, normally painstaking, reflection and in line with the canons of the taught tradition of the law as well as judicial self-restraint -- to be in conflict with the Basic Law, in the United States its Constitution. In other words, in invoking the power of judicial review, a court applies the superior of two laws, which at the level of the federal judiciary of the United States signifies the Constitution instead of the legislative statute or some action by a public official allegedly or actually based upon it.

____________________
1
Review of Benjamin F. Wright article, "Growth of American Constitutional Law", 56 Harvard Law Review487 ( 1942).
2
For an informative summary discussion, see K. C. Wheare, Federal Government, 4th ed. ( New York: Oxford University Press, 1964), Ch. IV, "The Constitution, the Courts, and the Law". Judicial review in Switzerland is confined to cantonal legislation.

-283-

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