7.3 Judicial Review and Constitutional Interpretation

Judicial review and constitutional interpretation are crucial aspects of modern democracies. Courts wield the power to scrutinize laws and government actions, ensuring they align with constitutional principles. This process shapes the balance of power and protects individual rights.

Different countries approach judicial review and constitutional interpretation in unique ways. From the U.S. Supreme Court's landmark Marbury v. Madison case to Germany's post-WWII Constitutional Court, these practices reflect diverse legal traditions and historical experiences.

Judicial Review and its Origins

Historical Roots of Judicial Review

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• Judicial review is the power of courts to review and invalidate laws, executive orders, and other government actions that violate the constitution or fundamental rights
• The origins of judicial review can be traced back to early English common law traditions
  • Dr. Bonham's Case (1610) established the principle that the common law could be used to invalidate acts of Parliament
• In the United States, the landmark case Marbury v. Madison (1803) firmly established the power of judicial review
  • Chief Justice John Marshall asserted the Supreme Court's authority to strike down laws that conflict with the Constitution

Comparative Perspectives on Judicial Review

• The French legal tradition initially rejected judicial review, instead relying on the principle of parliamentary sovereignty
  • The establishment of the Constitutional Council in 1958 introduced a form of limited constitutional review
• In Germany, following World War II, the Federal Constitutional Court was established with broad powers of judicial review
  • The court's purpose was to safeguard fundamental rights and prevent the rise of authoritarianism

Courts and Constitutional Interpretation

The Role of Courts in Constitutional Interpretation

• Courts play a crucial role in interpreting constitutions and resolving disputes between branches of government, different levels of government, and between the government and citizens
• Constitutional interpretation involves determining the meaning and scope of constitutional provisions, often in the context of specific cases or controversies
• Courts must balance competing interests and principles when interpreting constitutions
  • These principles include individual rights, separation of powers, federalism, and the rule of law
• In resolving constitutional disputes, courts may engage in various methods of interpretation
  • Examples of interpretation methods are textualism, originalism, purposivism, and living constitutionalism

Impact of Constitutional Interpretation

• The decisions of courts in constitutional cases can have far-reaching implications
  • Court decisions impact public policy, civil liberties, and the distribution of power within a political system
• Judicial review can serve as a check on the power of the legislative and executive branches
  • It prevents them from overstepping their constitutional authority or infringing upon individual rights
• By striking down unconstitutional laws or government actions, courts can protect the rights of minorities
  • This ensures that the majority does not trample upon fundamental freedoms

Constitutional Interpretation: Comparative Approaches

Divergent Approaches to Interpretation

• Judicial systems around the world employ different approaches to constitutional interpretation
  • These approaches reflect their unique legal traditions, historical experiences, and political contexts
• In the United States, the debate over constitutional interpretation often centers on the tension between originalism and living constitutionalism
  • Originalism seeks to interpret the Constitution based on its original meaning
  • Living constitutionalism views the Constitution as a dynamic document that should be interpreted in light of evolving social and moral norms
• The German Federal Constitutional Court is known for its purposive approach to interpretation
  • This approach emphasizes the underlying values and principles of the Basic Law, such as human dignity and the rule of law

Examples of Comparative Approaches

• In Canada, the Supreme Court has embraced a "living tree" approach to constitutional interpretation
  • This approach recognizes that the Constitution should be adapted to changing circumstances while remaining rooted in its original principles
• The South African Constitutional Court has developed a transformative approach to interpretation
  • This approach emphasizes the need to promote social justice and redress the legacies of apartheid

Judicial Review: Power and Rights

Criticisms of Judicial Review

• Critics argue that judicial review can lead to an overreach of judicial power
  • Unelected judges may make decisions that should be left to democratically elected officials
• The exercise of judicial review can also lead to tensions between the judiciary and other branches of government
  • This is particularly true when courts invalidate popular laws or policies

Factors Influencing the Impact of Judicial Review

• The impact of judicial review on the protection of rights depends on several factors:
  1. The independence, impartiality, and competence of the judiciary
  2. The strength of the legal culture and respect for the rule of law in a given society
• The effectiveness of judicial review in safeguarding rights and maintaining the balance of power varies across different political and legal contexts