Judicial review, power of the courts of a country to examine the

actions of the legislative, executive, and administrative arms of the

government and to determine whether such actions are consistent
with the constitution. Actions judged inconsistent are declared
unconstitutional and, therefore, null and void. The institution of
judicial review in this sense depends upon the existence of a written
constitution.
The conventional usage of the term judicial review could be more
accurately described as “constitutional review,” because there also
exists a long practice of judicial review of the actions of
administrative agencies that require neither that courts have the
power to declare those actions unconstitutional nor that the country
have a written constitution. Such “administrative review” assesses
the allegedly questionable actions of administrators against
standards of reasonableness and abuse of discretion. When courts
determine challenged administrative actions to be unreasonable or
to involve abuses of discretion, those actions are declared null and
void, as are actions that are judged inconsistent with constitutional
requirements when courts exercise judicial review in the
conventional or constitutional sense.

Whether or not a court has the power to declare the acts of

government agencies unconstitutional, it can achieve the same
effect by exercising “indirect” judicial review. In such cases the
court pronounces that a challenged rule or action could not have
been intended by the legislature because it is inconsistent with some
other laws or established legal principles1

Judicial Review in US
The best-known power of the Supreme Court is judicial review, or the ability of the
Court to declare a Legislative or Executive act in violation of the Constitution, is not
found within the text of the Constitution itself. The Court established this doctrine in
the case of Marbury v. Madison (1803).

In this case, the Court had to decide whether an Act of Congress or the Constitution
was the supreme law of the land. The Judiciary Act of 1789 gave the Supreme Court

1
https://www.britannica.com/topic/judicial-review
original jurisdiction to issue writs of mandamus (legal orders compelling government
officials to act in accordance with the law). A suit was brought under this Act, but the
Supreme Court noted that the Constitution did not permit the Court to have original
jurisdiction in this matter. Since Article VI of the Constitution establishes the
Constitution as the Supreme Law of the Land, the Court held that an Act of Congress
that is contrary to the Constitution could not stand. In subsequent cases, the Court
also established its authority to strike down state laws found to be in violation of the
Constitution.

Before the passage of the Fourteenth Amendment (1869), the provisions of the Bill
of Rights were only applicable to the federal government. After the Amendment's
passage, the Supreme Court began ruling that most of its provisions were applicable
to the states as well. Therefore, the Court has the final say over when a right is
protected by the Constitution or when a Constitutional right is violated.2

In 1796, Hylton v. United States was the first case decided by the Supreme Court involving a
direct challenge to the constitutionality of an act of Congress, the Carriage Act of 1794 which
imposed a "carriage tax".[2] The Court engaged in the process of judicial review by examining the
plaintiff's claim that the carriage tax was unconstitutional. After review, the Supreme Court
decided the Carriage Act was constitutional3

Criticism of judicial review[edit]

Although judicial review has now become an established part of constitutional law in the United
States, there are some who disagree with the doctrine.
In 1820, Thomas Jefferson expressed his opposition to the doctrine of judicial review:
You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very
dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.
Our judges are as honest as other men, and not more so. They have, with others, the same
passions for party, for power, and the privilege of their corps. ... Their power [is] the more
dangerous as they are in office for life, and not responsible, as the other functionaries are, to the
elective control. The Constitution has erected no such single tribunal, knowing that to whatever
hands confided, with the corruptions of time and party, its members would become despots. It
has more wisely made all the departments co-equal and co-sovereign within themselves. [62]
In 1861, Abraham Lincoln touched upon the same subject, during his first inaugural address:
[T]he candid citizen must confess that if the policy of the Government upon vital questions
affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the
instant they are made in ordinary litigation between parties in personal actions the people will
have ceased to be their own rulers, having to that extent practically resigned their Government
into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the
judges. It is a duty from which they may not shrink to decide cases properly brought before them,
and it is no fault of theirs if others seek to turn their decisions to political purposes 4

2
https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-
resources/about#:~:text=The%20best%2Dknown%20power%20of,Madison%20(1803).
3
https://en.wikipedia.org/wiki/Judicial_review_in_the_United_States
4
https://en.wikipedia.org/wiki/Judicial_review_in_the_United_States
https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-establishment-of-
judicial-review

https://www.britannica.com/topic/constitutional-law/Judicial-review-in-the-United-States