Judicial review is the power of courts to examine legislation or executive action and declare it invalid if it conflicts with a constitution or higher law. It is the enforcement mechanism of constitutionalism: without judicial review, constitutional limits are aspirational rather than binding.
In the United States, judicial review was established not by the Constitution itself but by the Supreme Court’s decision in Marbury v. Madison (1803), in which Chief Justice John Marshall declared that “it is emphatically the province and duty of the judicial department to say what the law is.” This act of self-authorization — the Court granting itself the power to override legislation — is one of the most consequential institutional moves in American legal history. Other constitutional systems have adopted judicial review through different mechanisms: specialized constitutional courts (Germany’s Bundesverfassungsgericht, France’s Conseil constitutionnel), or parliamentary processes that check legislation against constitutional requirements before enactment.
Judicial review concentrates enormous power in unelected officials. When the Supreme Court strikes down a law, it overrides the decisions of electorally accountable legislators. The standard defense is that judicial review protects minority rights against majority tyranny — the constitution exists precisely to place certain questions beyond democratic contestation. The standard critique is that judges aren’t neutral interpreters; they bring their own politics, class positions, and ideological commitments to constitutional interpretation, and judicial review allows them to constitutionalize their preferences.
The debate over judicial review maps onto deeper disagreements about legal interpretation. Originalists argue that constitutional meaning is fixed at the time of ratification, limiting judicial discretion. Living constitutionalists argue that constitutional meaning evolves with social conditions, expanding judicial discretion. Neither position is apolitical: originalism tends to constrain progressive legislation; living constitutionalism tends to enable it. The method of interpretation is itself a political choice.
Related terms
- Constitutionalism — the framework that judicial review enforces
- Adjudication — the broader process within which judicial review occurs
- Sovereignty — the authority that judicial review constrains
- Legal precedent — the mechanism through which judicial review decisions propagate
- Legitimacy — the quality that judicial review both depends on and can erode