Page 228 - DPOL202_COMPARATIVE_POLITICS_AND_GOVERNMENT_ENGLISH

Unit 9: Constitutional Structure: Judiciary

inoperative in case and to the extent there is the violation of the constitution. In America the judges Notes
apply the second criterion of ‘due process of law’ as well while using the power of judicial review for
the reason that, in the eyes of the judges, it is an historic safeguard against arbitrary governmental
actions affecting life, liberty and property of the people. Prof. H.J. Abraham defines the term to mean
the power of any court “to hold unconstitutional and hence unenforceable by law, any official action
based upon it, and any illegal action by a public official that it deems ... to be in conflict with the Basic
Law, in the United States its Constitution.”

The Supreme Court does not exercise advisory jurisdiction. It has consistently
‘rebuffed’ the President and the Congress to advise on “abstract’ point. However,
the judgement of the Supreme Court is final and no appeal can lie against it.

By virtue of this distinctive attribute, any federal court can declare an impugned executive or legislative
measure unconstitutional, but the Supreme Court has final authority in this regard. It is a fact that the
Constitution does not specifically empower the courts in this regard, but the power has been wielded
by virtue of ‘reading into the fundamental law of the land’ by the judges of the Supreme Court. It is
true to say that the power of judicial review in the hands of the judges has come by prescription. The
first instance took place in 1803 when Chief Justice Marshall gave his historic judgement in the case
of Marbury v. Madision. For the sake of clarity, four implications of this decision may be put as under:
1. That the Constitution is a written document that clearly defines and limits the powers of
government;
2. That the Constitution is a fundamental law and thus superior to the ordinary law passed by the
Congress.
3. That the act of Congress which is contrary to and in violation of the fundamental law is void
and cannot bind the courts; and
4. That the judicial power conferred by the Constitution together with the oath to uphold
Constitution which the justices take on the assumption of office, requires that the courts should
declare when they believe that the acts of Congress are in violation of the Constitution.
From 1803 onwards, the Supreme Court has made use of this innovatory power and thereby established
a strong and also unchallengeable position that, as Justice Frankfurter once confidently asserted, it
has ‘become the constitution’. However, it may be pointed out that the scope of judicial review is not
unlimited. The exercise of this distinctive attribute is tied up and these considerations ought to be
kept in view. First, the power is a clear proof of the judicial supremacy empowering the judges to
determine whether an executive order or a legislative measure is in conformity with the constitutional
provisions and thereby ‘valid’ or not. Second, it is not a prospective but a retrospective power which
means that an executive order or a legislative enactment made in the past is ultra vires of the Constitution
and so inoperative. Third, the federal judiciary of the United States can make use of this power in
regard to ‘federal questions’ and thus exercise this prerogative even in cases of executive orders and
legislative measures issued by the State governments. Fourth, there is nothing like an automatic
exercise, of this power. The courts can not take any initiative in this direction ; they can decide the
matter only when it is brought before them by the aggrieved party. Last, the Supreme Court is the
‘masterless man’ in this regard and it can change its own view as the circumstances demand.
Critical Appreciation: Undoubtedly, the distinctive attribute of judicial review has exalted the position
of federal judiciary at the expense of the powers of the executive and the legislature and thereby
given a rude setback to the system of checks and balances so well devised by the framers of the
Constitution. However, it may be commented that the power of judicial review in the hands of federal
judges is not without its utility. Apart from being a source of occasional irritation to the President, to
the Congress and to the State governments, it has protected the republican-federal system of the
United States. The Supreme Court has been lauded as the continuous constitutional convention at
work. Through this power, the Supreme Court has acted as the guardian of the national constitution,

LOVELY PROFESSIONAL UNIVERSITY 223