C H A P T E R
O
N
E
INTRODUCTION
Judicial Review : The Concept
Evolution of Judicial Review
Ilarbury Vs Medison.
JUDICIAL REVIEW: THE CONCEPT
Judicial
determine
the
determines
the
review
is
the
constitutionality
ultravires
or
power
of
of
the
legislative
intravires
courts
to
acts.
It
of
the
Act
s
challenged before it.
In the words of Smith & Zurcher, "The
examination or review by the courts in cases actually before
them, of legislative statutes and executive or
administra-
tive acts to determine whether or not they are prohibited by
a written constitution or are in excess of powers granted by
it
and
if
so,
to declare
them
void
and
of
no
effect."^
Edward S.Corwin opines that judicial review is the power and
duty of the courts to disallow all legislative or executive
acts of either the central
or
the state government, which in
the court's opinion transgresses the constitution.^
Judicial review is not an expression exclusively
in Constitutional Law.
used
Judicial review, literally means the
revision of the decree or sentence of an inferior court by a
superior court.
Under the general law, it works through the
1. Edward Conard Smith & Arnold John Zurcher, Dictionary of
American Politics, Barnes & Noble,New York, 1959, p.212.
2. Edward S. Corwin, A Constitution of Powers in a Secular
State. The Michie Company, US, 1951, pp.3-4.
remedies of appeal, revision and the like, as prescribed
the
procedural
laws
of
the
land,
irrespective
by
of
the
political system.
Judicial
review
has
however,
a
significance in public law, particularly
more
technical
in countries
a written constitution where the courts perform
having
the role of
expounding the constitution and excercise power of declaring
any
law or administrative
with
the
constitution
This judicial function
based
on a written
as
action
which
may
unconstitutional
stems
from
constitution
a
be
inconsistent
and
feeling
can hardly
hence
that
of
constitutional
govermental organs from
issues
excercising
and
also
powers
a
system
be effective
practice without an authoritative, independent and
arbiter
void.
impartial
to
which
in
restrain
may
not
be
sanctioned by the constitution.
A
federal
legislative,
between the
constitution
executive
and
in
division
some
cases
of
coordinate
and
of
each
other
-
also
established
to the true federal
independent
powers
judicial
General and Regional Governments
under it and which according
are
effects
in
principles
the
areas
allotted to them by the constitution. The two goverments thus
operate simultaneously upon the same people and territory. In
view
of
strictly
the
distribution
defined
and
of
legislati\)'e
limited
in
powers
relation
to
which
the
are
two
governments, it is quite likely that the areas and limits may
be
mistaken
required
or
is
forgotten,
strict
such
constitution,
theory,
is
although
invariably
a
not
written
constitution.
The distribution
of
legislative
powers,
which
is
hall-mark of a federal
constitution, quite often presents
important
to
question
as
dispute as to whether
who
to
case
of
a
encroaches upon the area assigned to the central
legislature
versa.
The
question
the
in
legislative
vice
law made by
decide
an
state
or
the
is
the
referred
to
above
is
not
necessarily limited to strictly federal systems but may also
crop
up
according
in
to
a
constitutional
many^,
is
not
set-up
federal.
like
For
ours,
the
which,
purpose
of
resolving such disputes, the power is given to the courts and
they are vested with the power of JUDICIAL REVIEW, as to the
validity of the laws made
by the
legislature. The
power
of
judicial review is not limited to enquiring about whether the
power
belongs
to
the
particular
legislature
under
the
constitution. It extends also as to whether the laws are made
in conformity with and not
in violation of other
provisions
of the consitution. For example in our constitution,
if the
courts find that the law made by legislature - union or state
1. e.g. Dr. K.C.Wheare o b s e r v e s T h e Indian Constitution has
established a form of Government which is at the most
quasi -federal,
almost
devolutionary
in
character,
a
Unitary State with subsidiary federal features rather than
a federal state with subsidiary unitary features, 48
Allahabad Journal p-21.
.is
violation of
the
various
fundamental
rights
gurantee<in
Part III the law shall be struck down by the courts on unconstitutional under Article 13(2).
find
that
the
law
is
violation
Similarly where the courts
of
Article
301 which
available to all persons the freedom of trade,
makes
commerce and
inter-course throughout the territory of India, the law shall
be struck down.
been
excesive
Again where the courts find that there has
delegation
of
legislative
power
case, the parent Act as well as the product,
a
particular
i.e.
delegated
legislation shall be struck down as unconstitutional^.
The interpretative
to
as
'Judicial
Review'
function of the courts
is
referred
which
as
well
can
be
direct<
as
2
indirect .
The direct
to
a
declare
judicial review involves the court
legislative
null and void because
enactment
or
an
executive
it is unconstitutional.
judicial review is rather important.
act
as
This type of
In the words of Dowling^
"indeed the study of constitutional law .... may be described
in
general
terms
as
a
study
of
the
doctrine
of
judicial
review in action".
1. In Hamdard Dawakhana V. Union of India, A . I 1 9 6 0 g-C.
554; the Supreme Court for the first time struck down as
unconstitutional an Act made by Union Parliament on the
ground of excessive delegation.
2. M.P. Jain, Indian Constitutional Law, 1974, p.755.
3. Cases on Constitutional Law, 20 (1954).
In
the
other
type
of
judicial
review^ which
termed indirect, the court attempts to give such
interpreta-
tion to the impunged statute so that it may be held
tutional.
Such
a
situation
can
arise
only
in
is
consti-
those
cases
where a statute is susceptible of double meaning- one which
would make the statute unconstitutional
would
such
steer clear the element
a
situation
construction
the
of the
court
and the other
of unconstitutionality
would
be
prove
statute which would
held unconstitutional.
to
save
which
and in
adopt
it
from
that
being
Douglas characterise this practice as
'tailoring an Act to make it constitutional'.
The
constitutions
of
Canada,
Australia
and
U.S.A.
do
not contain any provisions for direct judicial review, but it
has
become
an
integral
these countries.
part
of
these
Medison
content
in
the
Government, but experience
not
only
by
the
process but also through
due
process
of
law
and
"a dependence
of
USA
has taught
of auxiliary precautions".
bounds
constitutional
law
of
It is realised that mere are not suffice to
check abuse of power;
says
the
on
"is,
mankind
So our government
limitations
separation
the
wellneigh
set
by
the
no
people",
doubt,
the
the
necessity
is kept within
the
of powers,
doctrine
electoral
federation,
of
judicial
,1
1. Mason and Beaney: American Constitutional Law, 1960,pp.5-6
If the court
that it violates
of
its
wants
ignore
any
law
on
the constitution, declaration
constitionality
becomes void
to
is
essential.
automatically
the
ground
by the court
"Even
though
under Art. 13, without
a
the
law
nece-
ssity of any decleration by a court, a decleration that a law
has become void
take
notice
thing
of
which
is
necessary
it.
can
The
be
before
voidness
noticed
a court
of
as
law
soon
is
as
can
refuse
not
it
a
to
tangible
comes
into
existence, a decleration that it is void is necessary
before
it
Suo moto
decide
of Judicial
review
can
be
ignoredi<^ The
unconstitutionally
court
in the present
in India or in America,
does
system
unless moved
and, also, unless the determination
necessary
for
the
not
decision
of
the
by an aggrieved
of unconstitionality
case.
The
constitutionality
of
any
be
legislature
itself being the maker of law is not competent to
the
party
legislative
determine
Acts.
An
unconcerned, independent and impartial body like the court is
the porper authority to look into legilative lapses. This is
necessary for the maintenance of the spirit of democracy.
Where
legislature
Parliamentary
enacts
laws in violation
sovereignty
atrocious,
tyrannous
of the constitution,
prevails
and
unjust
the remedy
and
laws
the
or
available
to the people is to remove the Government itself, or to get
1. Mohd. Ishaque V. State; A.I.R. 1961, All, 522.
such law repealed by constitutional agitations, or to attract
the
mind
amend
of
or
legislatures
repeal
supermacy
also,
the
such
laws.
by
strong
But
where
public
the
is in force, people have another
i.e.
of
challenging
the
legality
openion
constitutional
effective
of
to
the
remedy
law
in
law
courts and in such case, they may not have any necessity
ending
the
Government
itself.
only
English
philosophers
envisage
Parliamentary
Sovereignty prevails there
a peaceful way of getting
convince
a majority
lively
concern
India,
as
the
The
rid of
of their
constitutional
kind
of
remedy
"Democracy
governments which
adult
for the interest
in America, the
first
subjects
of
the
aggrevied
of
provides
fail
that they
governed".^
citizens
as
to
have
But
in
have' personal
rights to challenge the validity of law in law courts also.
The decision of the question of constituionality
legislative Act
the
Constitution
broadest
pass
is the essence of
2
context
upon
the
of
America .
the
Judicial
is the self-assured
constitutionality
judicial
right
of
power
review
of a
under
in
of the court
legislative
its
to
acts.^
1. S.I. Beun & R.S.Peters, 'Social Principles and Democratic
State, George AlJ^n « Unwin Ltd.-, London 1965, p.355.
2. Bernard Schwartz, The Powers of Government, Volume I,
The Macmillan Company New York, 1963.p.
3. Stephen K. Bailey, Howard D.Samuel & Sidney Baldwin,
'Government in America', Holt Rinehart & Winston, New York
1961, p.49.
8
Judicial review of the constitionality of statutes is a peculiary American phenomenon which has been coped with
varying
degrees of success by other nations also.^
The
American
judicial
review,
however,
is
a
peculiar
2
Governmental feature among the nations of the world.
It is
a limitation on popular government and is a fundamental
of
the
Constitutional
Scheme
of
America.^
The
concept
Judicial Review has its foundation on the doctrine that
constitution is the supreme law.
source
confers
only
of
all
limited
the legislature
political
authority.
source powers
consciously
of
the
It has been so ordained by
the people, and in the American conception,
mate
part
on
the
it is the ultiThe
constitution
legislature.
If
or unconsciously oversteps these
limitations there must be some authority competent to hold it
in control, to thwart its unconstitutional attempt, and thus
to indicate and presence inviolate
the will of the people as
4
expressed in the constitution.
The judicial review is not
1. Martin Shapire, "The Supreme Court and the Administrative
Agencies", The Free Press, New
York, 1968, p. 22.
2. Wilfred E.Binkley & Malcoln C. Moos,'A Grammer of American
Politics", Alfred A.Knopf. New York, 1951,- p,517
3.
Richard Hofstadter, "Great Issues in American Politics",
Justk:e
Frankfurter in Gobitis case (1940) pT49
4. Rocco J. Tresolim, American Constitutional Law,
Macmillan Co., New York, 1965 r~pT51
The
the
judicial of supremacy
but
about all round progress of
judicial nationalism
to bring
the country. This power
of
the
courts to interpret and enforce constitutional clauses is not
explicity granted
inferred
by
the
constitutional
in the American Constitution.
courts
from
the
It has
existence
of
been
the
restrictions^.
In this connection Merril Jensen observes,
"by August
28,(1787) the convention had agreed on all the essentials of
the judiciary as it appeared in the final draft of the constitution, and it did so with remarkably
Neither
then nor
later
did
the
supreme court
little
delegates
be expressly
disagreement.
suggest
authorised
that
the
to rule
on the constitutionality of state and federal laws. They took
2
it for granted that it should and would do so" .
The
courts
protect
the
legislative
powers
against
their encroachments by other agencies. They defend the Union
against
the
the exaggerated
public
individuals.
1.
2.
interests
They
claims
against
conserve
of
the
the
the spirit
Encyclopaedia - Britamca,
195^,
Volume
states.
interests
of
VI,
order
They
protect
of
private
against
the
J'rinted in U.S.A.
Merrill Jenson, The Making of the American Constitution,
^urasia
Publishing
iiouse
(P) Ltd.,
Ramnagar,
New Delhi (1966)
p.110
10
innovations
"one
cannot
of
excited
easily
democracj^.
conceive
of
Timothy
a more
Walker
sublime
argues
excercise
of
powers, than that by which few m«a,1: through the mere force of
reason,
parade,
without
but
soldiers,
calmly,
andruwithout
noiselesslyriand
tumult,
fearlessly,
pomp,
or
proceed
to
get aside the acts of either Government, because repugnant to
2
the
constitution"
.
Judicial
review
is
the
last
word,
logically &nd historically speaking, in the attempt of a free
people
to
establish
and
maintain
a
government. Justice Goldberg alsa remarks
is
not
a usurped
power
ensure the supermacy
means
that
but
of the
non-elective
Government,
has
removable
principle
of equilibrium
of
a
things,
it
was
protect
the
branches.
fabric
of
As: John
required
imperative
the
the
grand
In
that
reached
P.
by
Roche
Judges
tsbme
institution
constitution
to
of
the
the
two
says-"
The
than
scheme
of
exist
to
ensure
that
legislature and an executive woufei
jiot connive together,
4
break the equilibrium of forces" .
1.
Willis, Constitutional Law ofsUnited States,
Principia Press, Bloomingdon Ihc-;, 1936 'p. 114
to
review
be more
thje aconstitutional
that
review
design
noo-removable ' branch
decisions
legislature.
" Judicial
constitution"^. Judicial
and
rejected
elective,
Puppets
a parrt of
non-auto-cretic
a
to
The
2. Elizabeth Kelley Bauer, Commentaries on the Constitution
C:oumbia University Press, New Yfirk, 1952,1790-1860., p.304.<
3. Arthur J. Goldberg, The Defences ,of Freedom,
& Row, Publishers, New York,1966. p.149
Harper
4.
Random
John P. Roche, Courts and Constitution,
House, New York, 196^^
p.22
11
To take recourse to judicial
review is the
evolution
of the mature human thought. Law must be in conformity
with
the constitution. If law exceeds in its limit, it is not law
but a mere pretence of law. Law must be
capable
to
bringing
human
just, virtuous
prosperity
and
not
and
arbitrary,
unjust and in violation of the constitution. Judicial
is a great weapon through whicn arbitrary, unjust
review
harassing
and unconstitutional laws are checked. Judicial review is the
cornerstone
of
constitutionalism,
which
implies
limited
Government^.
In this connection K.V. Rao remarks - "In a democracy
public openion
and
that
is
judiciary
all
the
should
constitution
Executive
is passive, and
reason
come
becomes
Supermancy,
ill
and
to
-
in
India
why
it
our
of
2
and
the
was not the intention of the Makers" .
cial
review
has
its
foundation
on
is
rescue.
balanced,
tyranny
it
the
is still
worse,
imperative
that
Otherwise
the
leans
havily
majority
and
on
that
The concept of Judifollowing
constitu-
tional principles.
(a)
The Government that cannot satisfy the governed of the
legitimacy of its action cannot expect to be considered legitimate and democratic, and such government also cannot expect
1. S.C. Dash, The Constitution of India, A comparative
Study Chailanga Publishing House, Allahabad,1960. p.334
2.
K.V. Rao, Parliamentary Democracy of India,
World Press Pvt. Ltd., Calcutta, 1961. p.213
The
12
to receive the confidence and satisfaction of the governed.
(b) The government in a democracy is a government of
powers,
and
a
government
with
limited
powers
has
limited
to
take
recourse to a machinary or agency for the scrutiny of charges
of
legislative
vices
and
such act of scrutiny
constitutional
disobedience,
can be done impartially
and
and
urbiasedly
only by the court.
(c) Each citizen in a democracy, who is aggrieved of a legislative Act on the ground of constitutional violation, has to
inherent right to approach the court to declare such legislative Act unconstitutional and void.
(d) In a federal state, judicial arbitration is inevitable in
order to maintain balance between the Centre and the State.
(e) Where the constitution guarantees the fundamental rights,
legislative
violations
of
the
rights
can
be
scrutinised
by
the court alone.
(f)
The
legislature
being
the
delegate
sovereign people has no jurisdiction
and
agent
of
the
and legal authority
to
delegate essential legislative function to any other body.
In
organ
the
for
constitution
limits
democratic
maintaining
and
assigned
for
to
state
the
keeping
its
the
court
fundamental
the
authority
is
the
object
legislature
by
the
essential
of
the
within
the
constitution
for
saving the people from the dangers of democratic tyranny
and
13
for materialising the aim of the constitution of establishing
a
harmonious
and
cohesive
society
based
on
ideal
common
morality. In this way the court is a real participant in the
living stream of national life.
Constitutional
protection
can
be
available
to
that
person only who in fact is aggrieved. A person who desires to
assert
his constitutional
rights must
show
that
his
rights
are affected and infringed. The court, by evolving the rules
of conduct for judicial review, has adhered to the principle
that
the
person
legislative
infringed.
power
of
who
Act
One
challenges
must
of
judicial
show
the
that
cardinal
review
of
the
constitutiionality
his
right
has
limitations
legislation
on
on
of
really
the
been
courts
constitutional
grounds is that it will decide only a ripened controversy
which
the
results
are
of
immediate
a
consequence
to
in
the
parties^. Willis has said - "In general, it may be said that
appropiate person to raise a tax question is one whose taxes
will
be
increased,
an
eminent
Domain
question,
one
whose
property is being taken; a police power question, one whose
2
personal
demands
liberty
that
if
is
any
being
delimited"
legislative
Act
.
is
Modern
democracy
challenged
by
an
1. E. Allan Farnsworth, An Introduction to the Legal System
of the U.S. Parker School of Foreign & Comparative
Law, Columbia University Press, 1963. p.145
2.
Hugh
Evander
Willis,
States, The
Principia
Constitutional Law of the United
Press Bloomingdon, 1963. p.92
14
aggrieved person in the court of Law, the validity of the Act
has to be tested objectively. The Supreme Court of India has
laid down that the court has abundant power to look into the
validity
of
law,
over-stepped
and
the
scrutinize
if the
the field of compelency even
legislature
indirectly
has
by way
of device^.
It is not
flout
asking
the
open
provisions
shelter
to the Legislature
of
behind
Part
the
III
plea
2
of
that
to contravene
the
the
and
constitution
infringement
by
was
accidental and not deliberate . In the case where the impugned provision is held to have violated
it is the bounden duty of the court
a fundamental
right,
to give redress
to the
party even if that involves the striking down of the provisions
further
of
a
said
law
that
enacted
the
by
court
the
is
Parliament^.
under
a
It
duty,
has
been
imposed
by
Articles 13 and 14 of the constitution, to act as a sort of
constitutional
at
the
censor of all legislations
instance
of
any
executive act, to examine
aggrieved
its legality
and
citizen
to
scrutinise
any
law,
and thus ensure
no unconstitutional legislation 4or illegal state
slips from its vigilant scrutiny . Judicial Review
or
that
actions
imprint
1. G. Nageshwar Rao V. APSRT Corporation AIR 1959.
2. Deoman Upadhyaya V.State; AIR; 1960 Para 51.
3. Manilal Gopalji
Para 5.
V.
4. U.P. Shramik Maha
Para-18.
Union
Sangh
of
India,
AIR;
1960
Bombay
V. State of U . P . A ^ ; 1 9 6 0
83
All.45
15
governmental
action with
the stamp
of
legitimacy.
It
check
the political branches of Government, when these encroach on
the
ground
forbidden
to
them
by
relieves
the
the
constitution
as
interpreted by the Court.
Judicial
review
legislature
of
great
responsibility and strain. Through the view expressed by the
courts
in
t h ^ process
constitutionality
of
of
any
judicial
legislature
review
Act,
regarding
the
the
legislature
recieves great inspiration, and arouses alertness and caution
to rectify mistakes and it creates tendency of conformity
the constitution.
James Madison
spoke
on
Saturday
July
to
21,
1787, in the constitutional convention, "It (Judicial review)
would
moreover
additional
unjust
be
check
measures
calamities"^.
useful
against
which
Thus,
if
to
a
the
pursuit
constituted
the
community
so
of
at
those
great
legislature
large
cases to consider the judicial v^i;^ict future
unwise
portion
becomes
strain. Judicial
an
and
of
our
alert
and
constitutional
lapses can easily be avoided, which may relieve the
ture of a great
as
legisla-
review of legislation,
been combined with the theory to set up an effective
has
system
of checks and balances to restrict majority rule in favour of
interests of minorities
. By judicial review the
legislature
1.
Adrienne
Koch,
The American Enliqhtment
Brazille, New York , p.4yi
George
2.
Charles Grove Hames & Foster H.Sherwood,The Role of the
Supreme Court in American Government and Politics,
Barkloy and Sons Anglos . 1 957 . 1835-1864 , pp .. 287-288 .
16
realises
its lapses and becomes
Existence
of
judicial
review
alert
on
against future
this
lapses.
consideration
is
also
that
judicial
very essential.
It
is " now
well-settled
the
interpretations create precedents and make new laws. Such law
is
judicial
established
itself.
Legislation.
legislature,
The
Judges
It
but
in
has
has
the
not
the
process
the
sanction
sanction
of
of
judicial
of
the
the
people
review
are
governed by the beliefs and feelings of the time, the current
economic
and
social
thoughts,
constitutional
mandates
and
intellectual and moral tone of nation, and are guided by the
high
judicial
standard
of
reasoning,
life and as such the constitutional
the
Judges
legislation,
out
an
have
legislative
extending
over
extra-ordinary
and
aim
In
than
within
effective reform which was logical,
philosophy
of
decisions handed down by
value.
more
and
England,
two
"Judicial
centuries,
certain
limits
systematic and
worked
a
most
effectual,
just because it was the application to the actual and varying
circumstances of a clear and simple principle"^.
In America, judicial review has rendered great
to
the
nation.
Though
on
occasion,' there
/
were
service
determined
attempts to curtail its powers but the nation as a whole has
accepted
healthy
it.In
India
too
judicial
review has created
a very
judicial legislation,which can be a perenial guide to
the nation.
I- A.V.Dicey,Law and Public Openion in England,
& Co. Ltd., London
p,395
Macmillon
17
EVOLUTION OF JUDICIAL REVIEW
The United States of America
gleam of
gave to the world
judicial review. The concept
of
judicial
a new
review
as
evolved in America was the result of continuous thinking and
growth. It had the heritage of Plato and Aristotle,
of Mague Carta
and
reason
assimilation
and
the
the
Cockeian
theory
of
the
of Common
practical
inklings
right
philosophy
and
of
Locke and other legal thinkers of Europe. Megna Carta yielded
a
great
influence
on
Coke
and
Locke
and
heritage to America for judicial review-
it
gave
a
great
The impact of Magua
Carta on the American Social Life was so great that the revolt
against
legislative
Americans
since
the
tyranny
time
of
remarks- "And just as the
was
a
common
the Colonial
phase
rule.
As
Charter was claimed by the
of
the
J.C.Holt
English
Radicals as a natural birth right, so in America some of its
principles
came
to
be
enforceable
against
legislative,
executive or
established
authority
in
as
all
individual
its
judicial...."^.
forms,
Before
the
rights
whether
Federal
Constitution was enacted in the United States of America James
Otis, a constitutional
mind
argued
in
1761
lawyer of extraordinery flexibility of
in
Panton's
precedent
of
Dr. Bonham's case decided by Chief Justice Coke in 1610.
"As
1. J.C. Holt, Magua Carta,
1965 • p.15.
case
on
the
Cambridge University Press
18
to
Acts
of
Parliament,
void. An Act
against
an
Act
natural
against
equity
the
constitution
is void"^. Justice
has said that "Otis argued that the Parliament was
arbiter
of
statutes
its
must
own
be
Acts
and
judged
contended
by
the
that
courts
the
of
not
is
Gray
final
validity
justice.
of
This
argument of Otis foreshadowed the principal of American constitutional
law
that
it
is
the
duty
of
the
judiciary
to
2
declare unconstitutionaly statutes void" . In America judicial
review has tended
to evolve
the national
outlook
to
a
great
magnitude. It (Judicial review) has guided the development
a
very
brief
constitution
of
agrarian
origins
into
a
of
great
body of constitutional doctrine for the goverance of a highly
technical
industrial
civilization. This
in itself
is a great
achievement.
The doctrine of judicial review of the United States of
America
is really
constitutions
century
and
of
in
the precursor
the
India
world
also
of
which
it
has
judicial
review
evolved
after
been
a
in
other
the
18th
matter, of
great
inspiration.
The
Americans
have
always
pleaded
for
limited
1.
Bernard Schwartz, The Reins of Power,
New York, 1963 - p.7
Hill & Wang,
2.
Cortez A.M.Ewing & Jewell Cass Phillips, Essentials of
American Government, American Book Co,
New York,
1962 .p.242
19
sovereignty which means that
the
law-making
function
of
the
legislative organ is governed by the fundamental rights of the
people and other constitutional
limitations.
framed
constitutional
which snatches
away
the
No
law can be
rights
of
people . " If sovereignty is considered to be all-powerful
the
;and
uncontrolled any person or party which can acquire by whatever
means the happenings of sovereignty can make binding commands,
and law would then rest on force
and
chicanery, which
makes
nonsense of the normal meaning of law".^
Retrospect :
The
historical
background
of
Judicial
Review
in
American can be divided into the following periods:
1. The Pre-Marshall Age(Pre-constitution Period to 1800 A.D.)
In Bonham's case of Lord Chief Justice Coke is said to
be a great heritage to the American System of judicial review.
Willis
England,
fertile
vigorous
remarks
but
soil
the
doctrine
in the
growth
Supreme Court
"Dr.Bonham's
that
was
announced
United
it
case
States
was
in the decisions
in
and
applied
soon
Coke's
dictum
sprouted
into
by
the
of cases coming
1. Ronald Young, American Law & Politics,
Publisher, New York, 1967 -p.151
repudiated
United
before
Harper & Law
2. Willis, Constitutional Law of the United States,
The Princepia Press, Bloomingdon, Inc. 1936 p. 76
in
found
such
a
States
it".^
20
This much is certain that the doctrine enunciated in Bonham's
case by Chief Justice Coke laid on unshakeable foundation of
judicial review in America.
Carl J. Friedrich also
the view that Coke laid down the foundation
supports
of the American
System of judicial review".... one can see here clear
for
judicial
review of
legislature
Acts
as
it
basis
later
became
reality under the written Constitution of the United States"^
The doctrine of Common Rights
and Reason
propounded
by Chief Justice Coke and Blackstone's commentaries combined
with the philosophy of Locke that the legislature was a were
trustee of the sovereign people and has no right to enact law
in
derogation
congenial
of
the
interest
atmosphere
decisions,
argument
for
of
Otis
of
the
judicial
Hamilton
people,
created
review.
Federalist,
a
Colonial
some
Pre-
Marshall decisions of the Supreme Court of the United
States
of America all fostered
review
a broader
scope for judicial
of legislative Acts.
The various events leading to the evolution of judicial
review in the first period are:
(a) In three colonial decisions between 1630 to 1776,
Colonial Acts were declared void and unconstitutional
Judicial
which
1.
Committee of
the Privy
unconsti-tutionality
was
Council.
determined
The
by
Premise
was
that
the
upon
the
Carl
J.
Fredrick,
The Philosophy of Law in Historical
Properties, Phoentx
Broks
. The University of Chicago
Press, Chicago 1965 p,78.
21
colonial
legislature
Parliament
and
any
was
subordinate
subordinate
to
legislation
the
British
enacted
by
the
subordinate legislative body of the colonies in contravention
of the Parliamentary Acts was void and unconstitutional. This
colonial
practice
for the
federal
of
judicial
supreme
review
court
afforded
a
of America which
background
assumed
the
power of judicial review. It appears that the colonial courts
and on appeal, the Privy Council of England had the power to
declare
legislative
acts void
if
in
conflict
with
colonial
charters.
(b) The argument by James Otis at Boston in February
1761 in the writs of Assistence case was a substantial
in the evolution
of
judicial
review.
The
question
involved
was whether Panton and other British custom officials
be furnished
search
with
smuggled
merchants
mainly
general
goods.
by
Parliament would
be
natural
and
equity"
search
warrents
It
was
opposed
Otis,
who
argued
enabling
for
an
"against the Constitution"
and
therefore
void.
Crown
should
them
the
such
says
step
to
Boston
act
of
"against
-
"Otis
doctrine met with a degree of success enough at least to make
it a permanent memory with the men of the time"^. James Otis
was
1.
Advocate
-
General
under
the
Crown.
He
resigned
Edward S. Corwin, Doctrine of Judicial Review
Peter Smith , 1963, p.31
his
22
office
in
1761
in protest
against
the
Writs
of
Assistence
which authorised officers to enter any house without
to
search
for
smuggled
goods.
He
grounded
his
warrant
case
on
'natural right' and argued that any act of Parliament against
this was
remarks
automatically
-
"Otis
did
null
not
and
win
void.
his
Marjorie
case,
but
G.
Fribourg
he did
win
the
ever-growing support of his countrymen"^.
(c) The judge Gushing of Massachusetts on the eve of
Decleration of Independence
in 1776
charged
a
Massachusetty
Jury to ignore certain acts of Parliament as void and
rative on the Gokeian doctrine of Bonham's case
(1610)
if
the Parliament
Act
was
against
inope-
(Rep.107,118)
common
right
and
reason.
(d) The state courts in several cases declared
Acts
void which were contrary
to the
state
State Gonstitution
on
the natural right" dictum of Coke.
(e)
In
1780
in
the
case
of
Holmes
V.
Walton
the
Supreme Court of New Jersey refused to carry out a State Act
which was enacted in conflict with the provision of the state
constitution.
class
of
The
offenders
constitution
state
by
provided
Act
a
provided
jury
of
such trial
by
six
a
a
trial
where
jury
of
as
specified
the
of twelve.
state
Thus
the Act was enacted in direct conflict of the constitutional
1. Marjoni G. Fribourg, The Bill of Rights,
Company, Philadelphia"^ 1967 #p. 38
Macrae
23
provision and intention^.
(f) Justice
Blair of the
Virginia
court
of
Appeals
concurring with other Judges held in the case of Commonwealth
V. Caton in 1782 - "that the court had power to declare any
resolution or Act of the legislature, or either branch of it,
to be unconstitutional and void". (Thayer - Cases in Consti2
tutional Law, Volume I, p.35) .
(g)
Travett
Supreme Court
V.
Weeden
in 1786, which
was
held
decided
that
the
by
the
state
law was
out
of
harmony with the Rhode Island Charter and therefore unconstitutional.
This
decision
also
created
a
suitable
background
for future evolution of the doctrine of Judicial review.
(h) Marshall spoke in the Virginia Ratifying
tion
of
1787
urging
(Congress) were
power
to make
enumerated,
it
infringement
of
They
guard.
are
coming
to
under
to
the
their
approve
the
a law not warranted
would
be
considered
constitution
They
constitution:
would
which
not
jurisdiction.
"If
any
they
of
by
the
Judges
they
are
to
such
a
consider
They
by
Conven-
would
the
as
guard.
law
declared
as
it
1. Edward S. Corwin, American Constitutional History,
Harper Torch Books, New York, 1964 ,p.lO
2. Charles Austin Beard, The Supreme Court and the Constitution,
Prentice Hall
Inc., U.S.A., 1962 ,p.48
2A
void"^. The creation of national supreme court in the United
States
of
America
settle
from
the
very
constitutional
begining
disputes
was
intended
regarding
to
the
constitutionality of legislative Acts either Congressional or
enacted by the states.
(i) In Bovrnicin V. Middleton, Bay
1792
the South
Carolinia
Supreme
Court
(SC) 252 decided
declared
an
in
earlier
colonial statute to have been void abinitio being controry to
"Common Right" and Magna Carta".
(j) In 1794 United States V. Yale Todd was decided by
the Supreme Court of the United
Act
of
March
23,
1792
of
States
of America
Congress
was
in
which
declared
unconstitutional. It is said that this was the first case in
which
the
Congress
Supreme
Court
unconstitutional
of
America
and
declared
Marbury
V.
a
statute
Madison
was
of
the
second.
(k) In 1796-1798 the Supreme Court gave the decisions
asserting the powers of the court for judicial review.
In
United
1796
States
determine
Chief
(3
whether
Dall
the
Justice
171)court
Chase
"It
is
remarked
in
unnecessary
constitutionally
Hylton
for
me
possesses
V.
to
the
1. Samuel J. Konefsky, John Marshall and Alexander Hemilton,
The
Macmillon
Company, New York, 1964 ,-p.84
25
power to declare an act of the Congress void on the ground of
its being contrery to and in violation
of the
constitution,
but if the court has such powers, I am free to declare it but
in a clear case".
In 1798 again Chief Justice Chase
3US,
386,
395 observed
- "I will
not
in Calder V. Bill
decide
any
law to
be
void, but ,in a very clear case".
(1) Madison when submitting the national
constitution
for ratification to state conventions said - "A law violating
a constitution established by the people themselves would be
considered by the judges as null and void".
(m) The
Federal
Convention
was
much
concerned
with
the problem of keeping of the powers of congress within constitutional bounds. Chief Justice Marshall before he expressed
his view on
the capacity
they
judicial
of
review
a delegate
in Marbury
V. Madison
to the Virginia
(the legislative) were to make
a
any of the powers enumerated, it would
spoke
Convention.
law not warranted
be considered
by
in
"If
by
the
judges as an infringement of the constitution which they are
to guard. They would not consider such a law as coming
under
their jurisdiction. They would declare it void"^.
1.
Robert K.
Renehart &
Carr, The Supreme Court and Judicial Review,
Company Inc., New York,1942.p
^
26
It is now the confirmed majority view in America that
the constitution - makers themselves intended judicial review
of
the
legislative
Acts
and
Constitutional
Supermacy
was further strengthened by the interpretations
which
of Hamilton,
Marshall and Taney.
Reviewing the constitutional literature in America on
this point,
it
appears
that
judicial
review
of
legislative
Acts in the American Constitution was certainty.
dably
needed.
It
progress
was
natural.
Its
It
unavoi-
tendency
was
inherent. Its application was the victory of democracy. Laski
observed
-
"The
judicial
review,
Supreme
is
in
Court
by
exercising
fact
a
third
this
power
chamber ' in
of
United
States" ..
(ii) The Age of Marshall.(1801-1835) .
John Marshall was appointed the fourth Chief Justice
of America
till
1835.
in 1801, and
This
Constitutional
was
history
he continued
a
glorious
in his
period
exalted
in
the
office
American
for the evolution of the doctrine of
Judicial review. His historic decision in jVIarbury V. Madison^
was preceded by the famous judiciary debate in the senate in
which
the
power
of
vigorously asserted.
1. 1 Cr. 137 (1803).
the
judges
for
judicial
reviewl
was
27
Madison
In
1803
Marshall
in
which
he
wrote
declared
the
that
authority to make laws repugnant
the case of constitutional
and
inherent
Marbury
right
decision
judicial
did
was
of
Marbury
legislature
to the constitution
to declare the
which
the
violation
Marshall
.review
decision
the court
legislative
not
invent
already
in
has
the
has
no
and
in
absolute
act
the
V.
void.
By
system
of
process
of
evolution, but by this decision he strengthened the system to
a
remarkable
extent^.
historical
point
of
importance
as the first
Benard
view
Schwartz
Marbury
case
V.
says
Madison
establishing
-
is
"From
of
a
crucial
the power
of
the
2
Supreme
Court
judicial
to
review
review
constitutionality"
thereafter
American
constitutional
threatened
openly
office
his
if
by
verdict
the
became
the
. The
integral
jurisprudence.
Republicans
were
to
go
of
in
system
part
of
Marshall
ousting
favour
of
him
of
the
was
from
judicial
control of legislative Acts. The threat was also a threat of
impeachment.
overawed
by
The
the
highest
political
judiciary
party.
But
of
the
Marshall
country
had
sense of nationalism and he posessed extra ordinary
a
was
great
strength
of mind and coolness of temper and without being perturbed by
1. Fred V. Cahill, JR, Robert J. Steamber, The Constitution
Cases and Comments,
The Ronald Press, Company,
New York,1959 ^ P-22
2.
Bernard
Schwzarts, The Reins of Power, A constitutional
History of the United States,
Hill & Mang,
New
York, 1963 ' P-^-^-
28
the threatening given to him he gave the solemn decision
Marbury V. Madison establishing constitutional
his
judicial
decision
he
nurtured
in
the
of
supermacy. By
American
mind
a
great unifying nationalism.
Thus,
Marshall
America
a
sense
remarks
-
" In
of
case
constitutional
brought
dignity
after
to
and
case,
structure
the
supreme
honour.
he
with
had
Jerre
been
S.
of
William
building
the
plan
and
consistent
imperishable materials. The political winds
court
blew
and
always
against him. But Marshall withstood and built on and on"^.
On
for
the
the whole,
Marshall
establishment
constitutional
established
decisions.
of
had
a congenial
judicial
The
is still vibrant and
review
doctrine
by Chief Justice Marshall
back-ground
of
through
judicial
in Marbury V.
its force stands unabated,
has everbeen criticised. By 1803
judicial
his
review
Madison
although
review had a
it
long
history in America.
Marshall's theory of
judicial review mostly
depended
upon his own personal view which he had held long before
he
became the Chief Justice of the Supreme Court of America. But
he was also inspired
through
1.
his
essay
in
in his
view by Alexender
'the Federalist'
Hemilton
(1788) had
Jerre S. Williams, The Supreme Court Speaks,
versity of Texas Press"^ 1956, p. 29 .
sought
Uni-
who
to
29
establish the theory of judicial review. Hamiltons concept of
Judicial Review has become a source of great
inspiration
the
after
Indian
constitutional
working.
Marshall
in
Hamilton
played a very significant part in the development of American
democracy through judicial review.
The American Bav
played
a very
substantial
part
the development of the doctrine of judicial review and
in
cons-
titutional interpretations were due to the able and vmstinted
f
co-operation
given
extra-ordinary
of
judicial
judicial
by
the members
forensic-merits^.
review
had
a
review was that
possessed
However, Marshall's
limited
a
of the bar who
scope.
His
legislative Act
philosophy
of
in violation
of
the constitution was void. He did not envisage that
arbitrary
and
unjust
legislation
would
be
concept
even an
considered
to
be
the legislation against the will of the sovereign people for
which
the
legislature
development
sovereign
and
people
as
such
took place
did
the
later
not
law
on the
delegate
should
power
be
to
void.
enactment of
the
the
This
Four-
teenth Amendment.
(iii) The Age of Taney
Marshall was
(1835-1864)
succeeded
by Taney
as Chief Justice
1. Alfred H. Kelly and Winfred A. Harbison.The American
titution (Its Origins and Development) ^ W.W. Harton
& Co.Inc., U.S.A., 1967
p.274
of
Cons-
30
America. Chief Justice Taney also made a great
to the system of
judicial review by upholding
contribution
the
supremacy
of the constitution. He observed that "as the constitution is
the fundamental
Congress
if
not
power assigned
the
and
courts
supreme law,
persuant
to
and
it
appears
within
the
to the Federal Government
of
the
United
that
it
States
an Act
limits
of
the
is the duty
to
of
declare
of
it
unconstitutional"^. Chief Justice Taney was born in the tradition of the landed aristocracy. His judicial career has two
important
features in the constitutional
interpretation:
(a) Extreme conservatism, and
(b) Personal conviction in the judicial decisions. •
In
social
the
Dredscott
philosophy
chattels
and
of
declared
the
case
he
was
time which
the
Missorie
much
treated
swayed
the
compromise
void on the ground that it did not provide for
by
the
slaves
Act
of
as
1820
compensation
to the slave-owners for freeing the slaves. Taney on account
of his conservatism did not allow
the basic
liberty
to
the
slaves.
Though the decision of Dredscaff case was against the
nations spirit and Civil liberty it considerably advanced the
cause
of
judicial
review.
Francis
1. Dredscott V. Sanford, 19 How 393
H.
Heller
(1857).
traces
the
31
evolution of judicial review in three stages. The first stage
according to him was the decision of Marbury V. Madison. The
second
stage
review
was
in
the
reached
development
in
This case represented
the
of
the
Dredscott
power
case
of
decided
an important enlargement
judicial
in
1857.
of the
scope
of judicial review over the doctrine of Marbury V. Madison.
The court
took up the task of determining
whether
has exercised power which the constitution had not
congress
delegated
to it. The third stage in the development of judicial
review
starts with the emergence of the court's modern doctrine
Due
Process
of
Law^.
In
Ableman
V.
Booth
decided
in
of
1859
Taney enhanced the power of the Supreme Court. Chief Justice
Taney observed
- "No power is more clearly
conferred
by
the
constitution and laws of the United States, than the power of
2
this
court
(the
Supreme
Court)"
. On
the
congress refused to pass a bill providing
bust
floor
in
the
courtroom.
Charles
-
"He
administered
degraded
the
judiciary
age"^. But
in recent
of
Summer
justice
the
at
death
funds
of
Taney
for a Taney
spoke
on
least
wickedly,
and
degraded
the
country,
and
years Taney's contribution
the
Senate
to Judicial
1. Francis H. Heller, Introduction to American Constitutional
Law .-Harper & Brothers, Publishers, New York, 1952 ,p. 46 '
2. Ableman V. Booth, 21 How 506, 16 Le^.169
(1859).
V
3. Rocco
J.
Tresolini,
Justice and the Supreme Court,
Quotation
of Charles Summer at p.8, J.B.
Lippincott
Company, Philadelphia, U.S.A.,1963.
32
Review has come into conspecious prominance. Eminent personalities
like
eulogised
Chief
the
Justice
Hughes
contribution
constitutional
and
of
jurisprudence.
Taney
Rocco
Chief
Justice
than
his
Justice
to
J.
"Recent Scholarship has demonstrated
better
Chief
the
Warren
field
Tresolini
of
remarks:
that Taney was a much
critics
would
have
us
believe"^.
(iv) The Age of Judicial Constitution - Making
The
fourth
agitation,
which
period
brought
began
with
the
into
existence
(1865-1932).
constitutional
in
1868
the
Fourteenth Amendment by which principle of Due Process of Law
was introduced. The Fourteenth Amendment came into
as
a
result
of
constant
thinking
and
existence
necessity.
No
infact, was wholly satisfied with the constitution.
one,
It was a
patchwork of compromises, a delicate adjustment of checks and
2
balances
" .
The
growing
dissatisfaction
with
the
constitution urged the United States Supreme Court to create
a
new
year
constitutional
1868
was
constitutional
a
horizon
critical
law
of
through
year
America.
in
The
the
judicial
review.
development
phrase
'Due
The
of
the
Process
of
Law' is an equivalent of the phrase "the law of the land" in
1.
Rocco J. Tresoline, Justice and the Supreme Court,
Lippincott Company, Philadelphia, U.S.A., 1963.
2.
Nathan Schachner, The Founding
Books, New York, 1961,p.5.
Fathers,
Capricorn
p. 8
33
Magna Carta.
bulwork
against
limitation
executive
great
In America
upon
and
weapon
the
"Due
arbitrary
all
the
judicial.
for
the
Process
of
legislation.
powers
Thus
of
the
It
Process
of
became
a
imposes
government
Due
enforcement
Law"
a
legislative
clause
judicial
was
review
a
in
America. G.G. Venkata Subba Rao says - "Due Process is thus a
formula which means that a legislation would be struck
down
as unconstitutional if in the openion of the Supreme Court it
imposes unreasonable restrictions upon vested rights or upon
liberty"^.
The Dredscott case decided by Chief Justice Taney had
created
great
reaction
in the minds
of the American
and the Fourteenth Amendment introducing
was
intended
to
give
wider
power
to
people
Due Process
the
Supreme
Clause
Court
in
judicial review.
2
In 1874 the Supreme Court
adopted
the
Cokeian
statute was void
was
doctrine
tional
doctrine
being
different
against
from
of
in Loan Association
Bonham's
common right
Marshall's
case
case
that
and
reason.
dictum
of
the
It
constitu-
supermacy. In the Cokeian doctrine adopted
in Loan
Association case the Judges had greater freedom in voiding a
1. G.C. Venkata Subba Rao, Legal Pillars of Democracy,
The Madras Law Journal Press Madras,1956 ,p.80
2.
Loan Association V. Topeka, 20 Wall 655.(1874).
34
legislative
Act.
The
doctrine
of
constitutional
supermacy
enunciated by Marshall and Taney demanded that a statute can
be declared void and refused to be enforced only when it is
repugnant to the constitution. But
United
States
of America
in
some
the Supreme Court of
later decisions
have
the
also
taken the view that the legislative Acts which are arbitrary,
unjust
and
anti-social
are
also
void.
These
decisions
are
founded on the theory that the legislature is a mere agent of
the people and as such the
legislature has no authority
to
make such laws which are not for the public good.
T
In
1905
invalidated
in
Lochner's
case
statute
which
a New York
the
Supreme
limited
Court
employment
in
Bank to a maximum of sixty hours a week and ten hours a day.
The
supreme
liberty
standard
court
without
of
constitutional
held
due
that
process.
invalidating
violation
but
there
In
was
this
a
case
the statute
arbitrary
deprivation
the
was
laws
objective
not
violating
personal liberty of a man and this was the guiding
of
the
the
principle
in many cases.
The court's attention during
the periods of Marshall
and Taney was confined to the doctrine of the
supermacy, expansion of Federal powers
and
constitutional
strengthening
government and the expansion of trade and commerce etc.
1. Lockner V. New York, 198 US (1905).
of
The
35
individual
Supreme
liberty
Court
was
applied
ignored.
its
mind
But
in
in
this
constitutional
makingfor the safety of individual liberty.
dealing
with
the
minimum
wages
question
etc.
were
of
legal
declared
period
policy-
A number of laws
tender,
void.
the
child
The
labour,
Supreme
Court
took a wide view in voiding the legislative Acts.
The
seriously
impact
period
of
judicial
review
from
engrossed with the policy-making
on
the
American
National
1865-1932
was
and had a great
System.
The
deciding the questions of constitutionality
justices
in
of a legislative
Act had to look to the social and economic conditions of the
country
in
order
to
judge
whether
confirmity with the constitution.
the
statute
is
The Judges of the
Court of the United States of America
in
Supreme
in this period
always
attempted to go by the current of time and their decisions do
not react merely the personal feelings of the judges but they
are based on social and economic visions of the great country.
(v)
The Era of New Deal or the Period of Unconstitutionality
(1933-36)
Between January 7, 1935 and May 25, 1936, the Supreme
Court of America declared
acts
of
Congress
unconstitutional
in twelve decisions, dealing with
the New Deal
Five
Legislation
entire Acts of
uncostitutional.
The
Acts unconstitutional
the New Deal
speed
of
declaring
was abnormally
high
the
and
Legislation.
were
declared
congressional
alarming.
The
36
previous
history
of
unconstitutional
declaring
was
most
congressional
normal
concern in the American life.
new
situation
Supreme
grew
Court
in
up
the
alarming political
and
which
and
did
not
Acts
cause
any
But in the new deal period a
the unprecedented
process
State
of
judicial
action
review
of
the
evoked
an
sentiment causing a great concern to the
President and it created an epoch in the history of
judicial
review of'America.
President
1933.
America
Roosevelt
was
in
assumed
the
grip
Roosevelt became President.
to
end
the
depression.
his
of
office
great
He promised
President
on March
depression
to take bold
Roosevelt
when
steps
introduced
certain new legislative measures which were characterised
"New
Deal"
and
constitutional
it
occupies
history
an
astounding
of America.
He
implied a new order of thing designed
mass of the farmers, workers
and
position
said,
in
"The New
to benefit
businessmen
4,
the
would
as
the
Deal
great
replace
the old order of special privilage".^
President Roosevelt was confident
plan
by
his
new
Socio-Economic
socio-economic
enactments
in
policy.
the
of success
A
large
field
of
in his
number
of
industry,
agriculture and labour were brought into existence to remove
the economic depression.
the Supreme Court
1.
declared
But out of
eight
ten New Deal
statutes
measures
unconstitutional.
Louis E.Koening, The Chief Executive, Harrourt
Brace & World, Inc., New York, 1964.,p"632
37
It
is
Shoals
said that
the court
and Rocks
of
Deal
measures
involved
the
Programme.
were
the New Deal
unconstitutionality,
the New Deal measures
New
had wrecked
The
court
destroyed
Supreme
unconstitutional
an unwarrantable
use
and
Court
on
of
that
ground
taxing
of
New
that
powers
Federal Government and violated the rights of the
the
nullifying
the heart
held
the
the
by
in
the
Deal
they
of
the
individual
States.
The
supporters
of
the
New
Deal
contended
that
the
test laid down in Lochner case^ was to be rigidly applied
this period.
guiding
The constitutional
principle.
The
test
violation
adopted
could not be
was
whether
in
the
the
legislation was arbitrary, unnecessary and unreasonable.
was asserted that the court assumed the legislative
and acted as "super legislature".
dominated
with
legislations
the
social
vitally
But really
feeling
affected
the
that
economic
function
the Court
the
It
New
liberty
of
was
Deal
the
governed and they are vitally against the spirit of the constitutional guartantee.
(vi) The Court-packing Plan or the Year of Revenge ( 1937).
President
Roosevelt
largest electoral majority.
those Judges of
the
Supreme
was
re-elected
in
1936
by
the
He had a great prejudice against
Court
who
had
1. Lochner V. New York 19a U.b. 45(1.905).
opposed
the
New
38
Deal legislation.
to reorganise
Six
On February 5, 1937 he made his proposals
the judiciary,
that
is, to
judges at that time were
aged
about
planned
that
increase
more
the
if
they
number
judges.
did
of
There
not
judges
were
retire,
to
70.
the
fiteen
already
"pack the
The
court".
President
Preisdent
by
three
would
appointing
judges
six
who
were
stated
that
existence
had
supporting the legislation.
In'this connection
the President
openly
the old judges on account of their cloistered
lost with the spirit of the time and so he wanted
retirement
of judges who had reached the age of 70.
The
Court
packing
programme
debatable and could not go through.
became
very
The Bar Association
America seriously opposed it by launching agitations
the plan
says-
and defended
"The
intact.
Court
the
packing
judiciary.
plan
much
itself
Alphens
left
of
against
Thomas
Mason
judicial
power
The judicary retreated, it did not surrender."^
But
Roosevelt
inspite
failed
to
of
all
subjugate
attempts
the
to
pack
judiciary.
the
There
court,
was
a
great public agitation against the court-packing plan and the
American
people
did
not
support
this
plan
of
Roosevelt.
1. Alphens Thomas Mason, Security Through Freedom,
Cornell University Press, New York, 1955 ,, p.123.
President
39
But one thing is very significant. The court
plan
had
judicial
a
great
review
slackening
in
the
effect
United
several years no legislation
on
States
the
of
packing
progress
America^ as
of congress was invalidated
of
for
by
/
the Supreme Court. " Mean while, the Supreme Court began
find constitutional support for
of
congress
was
declared
later New Deal Laws. No
unconstitutional
by
the
to
act
Supreme
Court from 1936 untile 1952"^.
(vii) The New Era (1938 to the Present)
From
history
1938
of
the
a new
United
feature of this period
era
emerged
States
is that
of
in
the
America.
constitutional
The
remarkable
there grew up a tendency
in
the judicial atmosphere of the Supreme Court to show a great
restraint
congress
the
in
or
justices
invalidating
the state
of
the
the
laws
legislatives.
Supreme
Court
It
either
enacted
is said
have
not
that
by
though
abrogated
the
power of judicial review, but there developed a marked change
in
their
uphold
legislative
probably
rather
1.
judicial
reflected
than
approach.
"The
enactment
judicial
retirement
from
tendency
expansive
of
the
court
of
national
in
these
aguiescence
the umpire's
Raymond M. Lahr. & J. William Theis,
Allyn & Bacon. Inc., U.S.A. 1967 , p-221
role.
In
to
power
policies
sum,
Congress,
the
AO
Supreme Court's policy of selective self-restraint, which has
been
so much
for
abandonment
arbiter.
policy
in evidence
of
since
its
1937,
ought
determinative
not
role
be
mistaken
as
federal
For rather than an indication of abdication, such a
is
manifestation
of
the
Supreme
Court's
exercise of the power as guardian of American
The year
Constitutional
1954, is a remarkable year
jurisprudence.
On May
17,
continued
federalism."^
of
1954
the
American
Chief
Justice
2
Warren
that
gave majority
year
establish
that
the
through
decision
Supreme
the Judges
Court
the process
craved social equality.
have been mostly
after
of
of
case.
America
judicial
It was
in
attempted
to
review
the
Thus in America in judicial
governed
time and the constitutionality
determined
in Brown's
by
the
impulse
review,
of
the
of a legislative Act has been
consideration
of
the
social,
religious and moral sentiments of the people.
Chief Justice Earl Warren
long-
is to be in gold
economic,
The period
of
in the annals of
the Constitutional history of the world.
In
Ferguson's
case
the
through Mr.Justice Black expressed
the Supreme Court
cannot
Supreme
Court
the majority
of
America
openion
strike down a law which
is
that
not
in
1. John R.Schmidhauser, The
Supreme Court as Final Arbiter
in Federal State Relations 1789-1957,' University of
North Carolina Press, 1958 ; p.213
2. Brown V. Board of Education of Topekha, 347US483
(1954).
41
violation
of
some
specific
constitutional
prohibition.
But
Justice Black's view in the present American Society can not
claim to have much effect on the judicial environment of the
United States of America, and it also can not be claimed
be
the
representative
view
of
the
American
to
Judicial
temparament and environment.
The Supreme Court of America
not consistent
the
'living
characterised
in this new era
though
in opinion on some points, has functioned
voice
it.
of
the
Constitution',
"The Supreme Court
as
Lord
is the Chief
as
Bryce
Protector
of the constitution, of its great system of balances, and the
people's
pressures
liberties.
now
and
It
may
then,
liberties would scarcely
have
but
retreated
without
even
its
yielded
vigilance
have survived"^.
l.Hewry
J. Abraham, The Judicial Process,
University Press, New York, 1962 ,p,327
Oxford
to
of
42
MARBURY Vs MADISON
The institution of judicial review
is attributed
to
Chief Justice John Marshall of U.S. Supreme Court who for the
first
time
laid
it
down
in
Marbury
V.
Madison^.
The
circumstances in which that decision was given were somewhat
remarkable'
and require a brief
to the Federalist
party
analysis. Marshall
and was
Secretary
of
belonged
state
in
the
Cabinet of President Adams, who succeeded Washington as the
President of the United States. He was nominated by President
Adams
to
the
additional
office
of
Chief
Justice
of
Supreme Court in January, 1801. He held both offices
the
final
1800,
weeks
Adams
was
of
the
Adams
defeated
in
administration.
the
Presidential
In
the
during
November,
election
and
Jefferson, author of the decleration of American Independence
and leader of the Republican party was elected as President.
The Federalists who had been the ruling party in control of
the destiny of the country till then faced a future in which
the country was no longer to be theirs to rule. They
had
a card
uptheir
New President
sleeves. Untill
the inauguration
on 4th March, Adams would
still be
still
of
President
and congress would still be Federalist. Congress hastily
about providing for the future of many faithful
Following
a
plan
of
Hemilton
1. (1803) 1 Cranch 137=2L.Ed.60.
the
the
set
Federalists.
mastermind
of
the
43
Federalists,
they
passed
a
law
creating
many
new
Districts courts. The Judges were to be appointed
so that they could not be removed by the incoming
administration. As Jefferson,
still
sitting
at
Federal
for
life,
Republican
the
head
the Senate pointed out there were at that time already
Federal Courts than the country needed, but that had
to do with
ohe plan.
more
nothing
The main purpose was to fill the
posts with Federalists.
of
new
The law was hurriedly passed and the
judges were appointed.
Time was passing swiftly and by
the
evening of 3rd March, several of the commissions had not yet
been
signed.
Late into the night. Chief Justice
acting as Secretary
the
commissions
Lincoln
as his
of state,
and
sat
signing
Attorney
at his desk
them.
- General,
filling
Jefferson
gave
him
Marshall,
chose
his
watch
out
Levi
and
ordered him to take possession of the state Department on the
stroke of midnight when Jefferson would become President. At
midnight,
Lincoln
dramatically
entered
Judge
Marshall's
office. "I have been ordered by President Jefferson" he said
solemnly" to take possession
of the office and
"Why, Mr. Jefferson
yet
has not
qualified,"
its
papers".
exclaimed
that
startled Chief Justice and Secretary of State. "It is not yet
twelve
O'clock"
and
he draw
out
his
watch.
Thereupon
Levi
Lincoln drew out his and showed it to Marshall. "This is the
President's watch", he said," and rules the hour."
John
Marshall
looked
longingly
at
the
unfinished
commission on his desk. But in his pocket he had a few of the
commissions and the men who finally received them were called
"John Adams, midnight Judges". Among papers left on the table
were
seventeen
commissions
as Justices
of
the
Peace,
which
had been duly sealed by John Marshall as Secretary of State.
John Madison, the new Secretary
them
after
the
close
of
the
of state refused
Court
to
deliver
remedy
secure
his
to
the original
a
writ
of
executive
administration.
William
appointees and he
brought
jurisdiction
mandamus
commission. The writ
compel
deliver
Adams
Marbury was one of these midnight
an action invoking
to
to
of the
compel
Madison
of mandamus was
officers
to
acts. Thus arose the case of Marbury
perform
Supreme
the
to
usual
ministerial
V. Madison^,
the
most
famous case in American Judicial annals.
Marshall
earliest
made
opportunity
proclaimed
up
to
his
mind
the
to
power
give
of
effect
at
judicial
by the Federalists. That opportunity
the
review
came to him
in Marbury V.Madison. It might be supposed that John Marshall
who
as
Secretary
of
state
had
been
responsible
for
the
failure to deliver the commission, would refuse to sit on the
case
because
of
his
it.Nevertheless,
with
to
opportunity
seize
the
personal
characteristic
connection
boldness,
believing
as
he
he
weith
proceeded
did
constitutional opportunity knocked but once. He held,
1. (1803) 1 Cranch
137=2L.Ed.60.
that
first,
45
that
Marbury
had
appointment
a
was
right
legally
to
the
Commission
completed
with
the
because
the
signing
and
sealing of the commission and that the Government was acting
illegally in withholding it. Secondly^
was
unquestionably
that
under
S.B
the
of
the
appropiate
Judiciary
he held that mandamus
remedy.
Thirdly,
Act
1789,
of
he
held
invoked
by
Marbury, the Court had been expressly granted jurisdiction to
issue the writ of mandamus to any person holding office under
the authority of the United States and so to the Secretary of
State who definitely
came within
proceed to observe that
issue
a writ
because the
argued
of
that
"if this court
mandam'U3
to
such
an
law is unconstitutional
that
the
description.
constitution
He
then
is not authorized
to
officer,
be
and
it
must
so void". He
than
specifically
the
prescribed
Supreme Courts' original jurisdiction, that this jurisdiction
did
not
include
the
power
to
issue .writ
of
mandamus
to
federal officers and that congress had no power to alter this
juridiction.
Therefore,
the
attempt
of
congress
in
judiciary Act of 1789 to give the supreme court authority
the
to
issue writs of mandamus to public officers" appears not to be
warranted
by
the
application
for
a
application
before
constitution".
mandamus
the
was
court
Consequently,
dismissed.
was
Thus
dismissed,
Marbury's
while
an
Act
the
of
congress, the supreme legislative body of the nation, had be
pronounced
unconstitutional
and
void.
John
Marshall
had
46
proclaimed
the
power
of
judicial
review
while
deciding
immediate issue in favour of the administration. In order to
appreciate
fully
the
origin
of
the
doctrine
of
judicial
review, it would be better to reproduce the openion of Chief
Justice John Marshall in Marbury V. Madison (1803) which runs
as under:
"The question whether an Act repugnant to the constitution can become the law of the land, is a question
deeply
interesting
of
tp
the United
gtates)
to
iti
but,
happily,
int^ieaey
proportioned
interegt.,
necepaary
to recognise certain principles,
it
not
seems
an
only
supposed to have
been long and well-established, to decide it. That the people
have
an
original
right
to
establish,
for
their
future
government, such principles as, in their openion, shall most
conduse to their happiness,
is the basis on which the
American
fabric
erected.
original
right
ought
it
to
has
is
be
been
a
very
great
frequently
The
exercise
exertion;
repeated.
nor
of
can
The
whole
this
it;
nor
principles,
therefore, so established, are deemed fundamental
and as the
authority from which they proceed is supreme, and can
seldom
act they are designed to be permanent.
"This
government
respective
certain
and
original
assigns
powers.
limits
and
not
It
may
to be
to
supreme
will
different
either
stop
transcended
by
organise
departments
here,
those
or
the
their
establish
departments.
47
The
government
description.
limited;
and
forgotton,
powers
of
the
United
The powers
that
of
those
the
to writing
if
these
passed
those intended
to
with
may
not
defined
purpose
limits
be
is
may,
restrained.
limited
and
be
and
are
committed
government
are
latter
is written. To what purpose
what
a
legislature
the
or
to
between
of
mistaken
and
by
is
limits
the constitution
limited,
States
that
at
limitation
any
The
time,
be
distinction
unlimited
powers
is
abolished, if those limits do not confi-ne the persons on whom
they are imposed, and if acts prohibited and acts allowed are
of
equal
obligation.
It
is
a
proposition
too
plain
to
be
contested that the constitution controls any .legislative act
repugnant
to
itj;
or
that
the
legislature
may
alter
the
constitution by an ordinary act.
"Between these alternatives there is no middle ground.
The
constitution
unchangeable
by
is
either
ordinary
means,
a
superior
or
it
is
paramount
on
a
level
law
with
ordinary legislative acts, and, like other acts, is alterable
when the legislature shall please to alter it. If the former
part
of
the
alternative
be
contrary to the constitution
true,
then
a
legislative
act
is not law; if the latter
part
be true, then written constitutions are absurbed attempts, on
the part of the people to limit a power, in its own
nature,
illimitable
"Certainly,
all
those
who
have
framed
written
constitutions contemplate them as forming the fundamental and
AS
paramount law of the nation,
and consequently
the theory
of
every such government must be, that an act of the legislature
repugnant
to
essentially
the
constitution
attached
to
a
is
void.
written
This
theory
constitution,
and
is
is,
consequently, to be considered, by this court, as one of the
fundamental principles of our society. It is not,
to
be
lost
sight
of
in
the
further
therefore,
consideration
of
this
subject.
"If
an
constitution,
invalidity,
effect?
act
is
bind
or
of
the
void,
the
ir^ other
legislature,
does
courts,
words
it,
and
though
repugnant
not
withstanding
oblige
it
to
be
them
not
the
its
to
give
it
law,
does
it
constitute a rule as operative as if it v^as a law? This would
be to overthrow, in fact, what was established in theory, and
would
see
at
first
view,
an
absurdity
too
gross
to
be
insisted on.
"It
shall,
however,
receive
a
more
attentive
consideration.
"It
is
emphatically
the
province
and
duty
of
judicial department to say what the law is. Those who
the rule to particular
cases, must of necessity
interpret that rule. If two laws conflict
apply
expound
with each
the
and
other,
the courts must decide on the operation of each. So, if a law
be
in opposition
to
the
constitution;
if
both
the
law
and
constitution
must
apply
either
to a particular
decide
disregarding
the
that
of these
so that
conformably
constitution,
consitution, disregarding
which
case,
case,
or
the
court
the
law,
to
conformably
to
the law; the court must
conflicting
rules
governs
the
determine
the case;
this
is
the very essence of judicial duty. If then the courts are to
regard
the constitution
ordinary
act of
the
and constitution
legislatures
the
is superior
constitution,
to any
and
such ordidnary act, must govern the case to which they
not
both
apply.
"Those
then
who
controvert
the
principle
that
the
constitution is to be considered in court as a paramount law,
are reduced to the necessity of maintaining
that courts must
close their eyes on the constitution, and see only
This
doctrine
written
would
subvert
constitutions.
according
It
the
would
to the principles
very
declare
the
law.
of
all
foundation
that
an
act
which
and theory of our government
is
!
entirely void, is yet, in practice, completely obligatory. It
would
declare
expressly
that
forbidden,
if
the
such
prohibition, is in reality
the
legislature a practical
same breath which professes
narrow
limits.
legislature
act,
notwithstanding
effectual.
and
do
what
the
is
express
It would be giving
real omnipottence, with
to restrict
It is prescribing
shall
their powers
the
within
limits, and declaring
those limits may be passed at pleasure. That it thus
to
that
reduces
50
to nothing, what we have deemed the greatest
political
itself,
institutions,'
be
a
written
sufficient,
constitutions
have
been
in
constitution,
America,
viewed
improvement
with
so
would,
where
much
on
of
written
reverence
for
rejecting the construction
"There are many other parts of the constitution which
serve to illustrate this subject. It is declared that no tax
or duty shall be laid on articles
Suppose a duty
on
the export
flour; and a suit instituted
to be
rendered
in
such
of
exported
cotton,
to recover
a case?
Ought
from any
of
tabacco,
it. Ought
the
state' .
judges
or
of
judgement
to
close
their eyes on the constitution, and only see the law.
"No person' says the constitution' shall be convicted
of treason unless on the testimony
of
two witnesses
to
the
same overt act, or on confession in open court.
"Here, the language of the constitution
specially
to the
courts.
It prescribes
directly
rule of evidence not to be departed from. If the
should
change
that
rule
and
declare
one
is addressed
for
them
a
legislature
witness
or
confession out of court, sufficient for conviction, must
a
the
constitutional principle yield to the legislative act?
"Frome these and many other selections which might be
made,
it
is
apparent
that
the
framers
of
the
constitution
contemplated that instrument as a rule for the government
of
51
courts, as well as of the legislature.
"It is also not entirely unworthy of observation that
in declaring what shall be the supreme law of the land,
the
constitution itself is first mentioned: and not the laws of
the
U.S.
generally
but
those
only
which
shall
be
made
in
pursuance of the constitutions have that rank.
"Thus the particular phraseology of the constitution
of the United States confirms and strengthens the principle,
supposed
to be essential
that a law repugnant
courts
as
well
instrument".
as
to
to
all
the written
the constitution
other
departments
constitutions,
is void;
are
bound
and
that
by
that