Judicial Review

Part 1: Introduction to Federalism and Judicial Review

Part 1 serves as a comprehensive introduction to the core principles of federalism and

judicial review, laying the groundwork for the document's exploration of these concepts
within different countries' contexts.

Federalism, the central theme of this document, is a system of government where powers
and responsibilities are divided between a central authority and regional entities, such as
states or provinces. This division allows different regions within a country to govern
themselves, catering to their unique cultural, social, and economic needs. Federal systems
are designed to strike a delicate balance between local autonomy and national unity,
ensuring that both regional diversity and national cohesion are maintained.

Crucially, federal systems often face challenges related to the allocation of powers between
the central government and regional entities. These challenges can lead to disputes,
necessitating mechanisms to resolve conflicts and maintain the overall integrity of the
system. This is where judicial review comes into play.

Judicial review is a fundamental component of modern democratic societies. It refers to the

process by which constitutional or supreme courts assess the legality of laws, government
actions, and policies. Through this process, the judiciary ensures that these laws and actions
align with the principles outlined in the constitution, the highest legal document of a nation.
Judicial review serves as a safeguard, preventing the abuse of power by any branch of the
government.

The significance of judicial review lies in its ability to interpret the constitution, ensuring that
laws and policies adhere to its fundamental tenets. By upholding constitutional integrity,
judicial review helps maintain the rule of law, protects individual rights, and preserves
democratic values. It acts as a check and balance within the governmental system,
preventing any single branch from overstepping its authority.

In essence, this introductory section establishes the foundational concepts that are vital for
understanding the subsequent discussions in the document. By exploring how different
countries navigate the complex terrain of federalism and judicial review, the document
delves into the diverse approaches that nations adopt to maintain a harmonious balance
between regional autonomy and national unity. Each country's unique historical, cultural,
and political context shapes its approach to federalism and judicial review, leading to a rich
tapestry of governance mechanisms around the world.

Part 2: Federalism and Judicial Review in the United States

Part 2 provides a comprehensive examination of how the United States, a prominent federal
system, has grappled with the intricate relationship between federalism and judicial review.
It delves into the history, development, and key cases that have shaped the U.S. federal
system and its approach to judicial review.
The United States, as a federal republic, was founded on the principles of federalism, where
power is divided between a national government and individual states. The U.S. Constitution
serves as the supreme law of the land, outlining the distribution of powers between the
federal government and state governments. It's a living document, open to interpretation
and subject to judicial review.

One landmark case discussed is Marbury v. Madison (1803), which established the principle
of judicial review. This case affirmed the judiciary's authority to declare acts of Congress
unconstitutional, ensuring that the Constitution remains the ultimate law of the land. It set
the stage for the U.S. Supreme Court, the highest federal court, to play a central role in
interpreting the Constitution and maintaining the balance of power between federal and
state governments.

Another critical concept is the supremacy clause, which asserts that federal law trumps state
law when there's a conflict. This principle was central in resolving conflicts between state
and federal governments, emphasizing the preeminence of the U.S. Constitution.

Additionally, the Tenth Amendment reaffirms the powers not delegated to the federal
government are reserved for the states. This amendment reinforces state sovereignty,
providing a safeguard against federal overreach.
Part 2 of the document explores the intricate relationship between federalism and judicial
review in the context of the United States. It delves into the historical developments, pivotal
court cases, and constitutional principles that have shaped the American federal system.

Marbury v. Madison (1803):

One of the most significant cases discussed in this section is Marbury v. Madison, a landmark
decision by the U.S. Supreme Court that established a fundamental principle of American
constitutional law – the power of judicial review. The case arose during the transition
between the outgoing President John Adams and the incoming President Thomas Jefferson.

Brief Facts of Marbury v. Madison:

In the last days of his presidency, Adams had appointed numerous justices of the peace for
the District of Columbia. These appointments were confirmed by the Senate but were not
yet delivered when Jefferson assumed office. Jefferson, upon taking office, directed his
Secretary of State, James Madison, not to deliver some of these commissions, including the
one for William Marbury.

Marbury petitioned the Supreme Court for a writ of mandamus, a court order compelling
Madison to deliver his commission. The case reached the Supreme Court under Chief Justice
John Marshall. Marshall faced a dilemma: if he ordered Madison to deliver the commission,
it might be ignored by the executive branch, weakening the Court's authority. On the other
hand, if the Court denied Marbury's request, it might appear powerless to check the
executive branch's actions.
Key Ruling and Significance:

Chief Justice Marshall, in the Court's opinion, held that while Marbury was entitled to his
commission, the Judiciary Act of 1789, which granted the Court the power to issue such
writs, was unconstitutional. This ruling was groundbreaking because it asserted the Supreme
Court's authority to review the constitutionality of laws passed by Congress. In doing so, it
established the principle of judicial review, giving the Court the power to invalidate acts of
Congress it deemed unconstitutional.

Expansion:

Marbury v. Madison's significance extends far beyond the specific case itself. It laid the
foundation for the judiciary's role as the ultimate interpreter of the Constitution, ensuring
the separation of powers and the system of checks and balances. This decision empowered
the Court to safeguard individual rights and prevent potential abuses of government power.

Moreover, Marbury v. Madison exemplifies the delicate balance between the federal
branches and reaffirms the Supreme Court's position as the final arbiter of constitutional
questions. It remains a cornerstone of American constitutional law and continues to
influence judicial decisions, serving as a guiding principle for ensuring the Constitution's
supremacy and preserving the integrity of the American legal system. Understanding the
nuances of this case is crucial to comprehending the evolution of federalism and judicial
review in the United States.

Canada

In Canada, as well as in many other constitutional democracies, there are two types of
‘judicial review’ – judicial review on administrative acts, and judicial review on the
constitutionality of legislation. Both types of ‘judicial review’ are based on the idea of the
rule of law. This idea means that not only citizens, but also governments’ officials, are
subject to the law. If these officials do something that the law does not allow them to do,
the courts are allowed to nullify their actions.

The first type of ‘judicial review’ involves the actions of the executive branch of government.
In the modern state it is impossible for the legislature to address every administrative
decision (such as the decision to issue or to refuse to issue a business license), therefore,
many statutes endow various governmental authorities with administrative powers. If a
person believes that a certain governmental authority has exercised its power in an
arbitrary, discriminatory, or otherwise unreasonable way, she can file a suit in a court of law
and ask for ‘judicial review’, that is, to ask that the court review the administrative decision.
If the court finds in favour of the plaintiff, it can annul the administrative decision.

The other type of ‘judicial review’ does not involve the actions of the executive branch, but
rather the actions of the legislative branch. S. 52 of the Constitution Act, 1982 provides that
“the Constitution of Canada is the supreme law of Canada”. S. 24 of the same Act guarantees
the right for individuals to challenge legislation which does not conform with the
Constitution thereby giving Canadian courts the power to engage in ‘judicial review’ on the
constitutionality of legislation. The purpose of this type of ‘judicial review’, also referred to
as “constitutional review”, is to ensure that legislation conforms to the Constitution of
Canada. The Constitution regulates two different areas – the division of powers between the
federal and provincial government, and the rights guaranteed to every Canadian against
both levels of government. Consequently, there are two ways in which an act of a legislature
or of Parliament might be unconstitutional. First, when the act is enacted by a provincial
government while the relevant subject matter of the act is under Federal jurisdiction (or vice
versa) (see division of powers). Second, when this act violates the Charter of Rights and
Freedoms.

When a court strikes down legislation on division of powers grounds, it does not mean that
the content of law itself violates the constitution. Rather, it means that the institution which
enacted the law (a provincial legislature or Parliament) violated the Constitution.
Consequently, if there is a strong public interest in enacting this legislation, the appropriate
institution can enact this act. Conversely, when a court strikes down legislation on Charter
grounds, it means that the content of the law violates the Constitution, and no legislature
could properly enact this law. For this reason, ‘judicial review’ on Charter issues is often
criticized as illegitimate since it gives to the judiciary the power to block important legislative
initiatives.

The obvious response to this criticism is that when the courts nullify legislation that violates
the Constitution, it enforces this document, not the judicial will. An objection to this
response is that the language of theCharter is very open-textured, and refers to abstract
concepts such as “freedom of expression”. People could reasonably disagree about the
meaning of such concepts, and therefore courts would not really enforce “the Charter”.
Rather, they impose their own subjective reading of the ambiguous language of theCharter.
Since judges are not democratically elected, and cannot be replaced in office by the public
will, their own view of the Charter of Rights and Freedoms has no legitimacy.

The question pertaining to the legitimacy of constitutional review is poignant for every
constitutional democracy and is not unique to Canada. It has been the subject of a vast body
of literature in the past century. The two most common responses to this question are as
follows. First, precisely because the Constitution’s language is ambiguous, it needs
interpretation by an authoritative institution. For the reason that part of the purpose of the
Charter, indeed of the entire Constitution, is to protect minority groups and individuals, it
should not be enforced and interpreted by majoritarian institutions such as the legislature.
Judges are not elected and are not accountable, and therefore they are best capable of
interpreting the constitution in a way that will protect minorities.

Second, while courts have the power to strike down legislation based on their reading of the
constitution, in reality judicial decisions are not final, and legislatures have their ways to
respond to a judicial decision with which they do not agree. The constitutional mechanisms
for such legislative action are judicial appointments, constitutional amendments, and in
Canada, the use of thenotwithstanding clause.

In Part 3, several important Canadian legal cases are discussed, each contributing
significantly to the understanding of federalism and judicial review in Canada.
1. Russell v. The Queen (1882):
- Facts: This case involved a dispute between the federal and provincial governments over
taxation powers. The Judicial Committee of the Privy Council held that the federal
government had exclusive jurisdiction over certain types of taxation.
- Significance: It established early precedents defining federal and provincial powers
regarding taxation, setting a foundation for future cases.

2. AG Canada v. AG Ontario (Reference re Firearms Act) (2000):

- Facts: The case revolved around the federal Firearms Act, which Ontario challenged as an
intrusion into provincial jurisdiction. The Supreme Court of Canada clarified the scope of
federal criminal law power and provincial jurisdiction.
- Significance: It delineated the boundaries between federal criminal law and provincial
powers, establishing principles for interpreting similar disputes.

3. R v. Morgentaler (1988):
- Facts: Dr. Morgentaler was charged with performing abortions contrary to the Criminal
Code. The Supreme Court of Canada declared the abortion law unconstitutional, stating it
violated women's rights to security of the person.
- Significance: This case had profound implications for federalism, emphasizing the need
for a balance between federal criminal law and provincial jurisdiction over healthcare.

4. R v. Comeau (2018):
- Facts: Gerard Comeau was fined for bringing large quantities of alcohol across provincial
borders, challenging New Brunswick's restrictions. The Supreme Court of Canada ruled that
provincial laws restricting interprovincial trade were unconstitutional.
- Significance: It clarified the extent of provincial regulatory authority, reinforcing the
principle that provinces cannot impede the free flow of goods across internal borders.

5. Reference re Secession of Quebec (1998):

- Facts: The Canadian government sought the Supreme Court's opinion on the legality of
Quebec's potential secession. The court outlined the constitutional framework for secession,
emphasizing the requirement for negotiation and constitutional consent.
- Significance: It established guidelines for addressing secessionist movements within the
framework of Canadian federalism, emphasizing dialogue, negotiation, and adherence to
constitutional principles.

These cases collectively contribute to the rich tapestry of Canadian federalism and provide
essential legal precedents for understanding the intricate balance between federal and
provincial powers in the country.

India and Australia

Part 4: Comparative Federalism and Judicial Review

Explanation:
Part 4 delves into a comparative analysis of federal systems, shedding light on the
complexities of jurisdictional disputes and the mechanisms employed to resolve them. It
provides in-depth insights into federal structures in the United States, Canada, Germany, and
the European Union, emphasizing the diverse approaches to judicial review adopted in these
regions.

The section explores the intricate relationships between federal and state/provincial
governments in the United States, where the Supreme Court plays a vital role in interpreting
the Constitution and resolving disputes. It discusses landmark cases such as Marbury v.
Madison, highlighting the establishment of judicial review as a fundamental principle in
American constitutional law.

Canada's federal system comes under scrutiny, showcasing how the Supreme Court of
Canada navigates constitutional intricacies and protects individual rights. The analysis
extends to Germany, where the Federal Constitutional Court ensures federal comity by
promoting cooperation between federal and state governments while upholding the
principles of democracy and social federalism.

Additionally, the section delves into the unique case of the European Union, a federation-in-
the-making with confederal characteristics. It explores the role of the European Court of
Justice (ECJ) and its evolution from a watchdog overseeing treaties to a central judicial
authority interpreting European law. The section emphasizes how the ECJ's decisions have
contributed to the development of a legally certain governance system within the EU.

Key Points:

1. Comparative Federalism: Part 4 explores federal systems in the US, Canada, Germany, and
the EU, highlighting their unique features and challenges in balancing central and regional
authority.

2. Judicial Review Mechanisms: The section examines the role of courts, especially supreme
courts, in interpreting constitutional laws and resolving jurisdictional conflicts in various
federal contexts.

3. Landmark Cases: It discusses significant cases such as Marbury v. Madison in the US,
emphasizing their impact on establishing judicial review as a cornerstone of constitutional
governance.

4. European Union Dynamics: The EU's evolution from confederation to federation and the
central role of the European Court of Justice are analyzed, showcasing the complexities of
legal integration in a supranational entity.

5. Protecting Federalism: Throughout the section, the document underscores the

importance of judicial review in preserving federal structures, ensuring democratic
principles, and upholding individual rights within diverse federal systems.
In summary, Part 4 provides a comprehensive comparative analysis of judicial review
mechanisms in federal systems, offering valuable insights into the nuanced approaches
taken by different countries and the evolving dynamics of federal governance in the modern
world.

Cases on Judicial Review in India:

1. Keshavananda Bharati v. State of Kerala (1973):

- Facts: The case challenged the legality of the 24th Amendment Act, which sought to
negate the Supreme Court's decision in Golaknath case and empower the Parliament to
amend any part of the Constitution, including fundamental rights.
- Significance: The Supreme Court, in a landmark decision, established the basic structure
doctrine, ruling that while Parliament had the power to amend the Constitution, it couldn't
alter its essential features.

2. Indira Gandhi v. Raj Narain (1975):

- Facts: The case involved the election of Prime Minister Indira Gandhi, challenged by her
opponent Raj Narain, who alleged electoral malpractices.
- Significance: The Supreme Court set a precedent by declaring the election void due to
electoral misconduct, reinforcing the judiciary's role in upholding democratic principles.

3. Maneka Gandhi v. Union of India (1978):

- Facts: Maneka Gandhi's passport was impounded without giving her a chance to be
heard. She challenged the government's action, asserting her right to travel abroad.
- Significance: The Supreme Court expanded the scope of personal liberty under Article 21
of the Constitution, emphasizing fair procedure and natural justice, setting a significant
precedent for individual rights protection.

Cases on Judicial Review in Australia:

1. Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920):

- Facts: The case involved a dispute over the application of an industrial award. The Court
established the doctrine of ultra vires, enabling judicial review of administrative decisions.
- Significance: This case laid the foundation for judicial review in Australia, allowing courts
to examine administrative decisions for legality and fairness.

2. Minister for Immigration and Ethnic Affairs v. Teoh (1995):

- Facts: The case dealt with the immigration department's decision affecting a child, where
the department failed to consider the child's best interests, as required by international
conventions.
- Significance: The High Court ruled that public officials must consider Australia's
international obligations when making decisions, emphasizing the significance of
international law in administrative decisions.

These cases illustrate the pivotal role of judicial review in India and Australia, ensuring the
legality, fairness, and constitutionality of administrative actions while upholding
fundamental rights and democratic principles.
Germany

In Germany, judicial review is a crucial aspect of the legal system, ensuring the
constitutionality of laws and government actions. The power of courts in Germany in judicial
review, as explained in the document, is characterized by several key features:

1. Federal Constitutional Court (Bundesverfassungsgericht): The Federal Constitutional Court

is the highest court in Germany for matters relating to constitutional and administrative law.
It has the authority to review laws, government actions, and decisions made by other courts
to ensure their compatibility with the Basic Law (Grundgesetz), Germany's constitution.

2. Abstract Norm Control: One of the unique features of the German judicial review system
is the ability of the Federal Constitutional Court to conduct abstract norm control (abstrakte
Normenkontrolle). This means the Court can review the constitutionality of laws without a
specific legal dispute. If there is a concern that a law violates the Basic Law, individuals,
courts, or even a third of the members of the Bundestag (German federal parliament) can
bring the law before the Constitutional Court.

3. Concrete Norm Control: In addition to abstract norm control, the Constitutional Court can
also engage in concrete norm control (konkrete Normenkontrolle). This occurs when an
individual case is brought before the Court, and it has to decide on the constitutionality of a
specific law as applied in that case.

4. Protection of Fundamental Rights: The German courts, including the Federal

Constitutional Court, play a vital role in protecting fundamental rights guaranteed by the
Basic Law. If a law or government action infringes upon these rights, individuals can bring
their cases to the Constitutional Court, which will assess the constitutionality of the law or
action in question.

5. Subsidiarity Principle: The German judicial review system operates based on the
subsidiarity principle, which means that lower courts are usually the first instance to review
cases. If a constitutional issue arises during a trial, the lower courts can refer the
constitutional question to the Federal Constitutional Court for a decision.

6. Binding Nature of Constitutional Court Decisions: Decisions of the Federal Constitutional

Court are binding and have the force of law. This means that once the Court rules on the
constitutionality of a law, the decision sets a precedent that must be followed by other
courts and government authorities.

Overall, the German judicial review system, centered around the Federal Constitutional
Court, ensures the protection of constitutional principles and fundamental rights,
maintaining the balance between individual liberties and the state's authority.

EU

Part 7 of 9: European Union - European Court of Justice and Supranationality

Introduction to the European Union's Federal Characteristics:
The European Union (EU) is a unique entity in comparative federalism, displaying federal
characteristics while also retaining confederal elements. This part of the document delves
into the EU's federal features, emphasizing its evolution from a system of intergovernmental
treaties into a more legally certain governance framework subject to independent judicial
review.

Role of the European Court of Justice in Interpreting EU Treaties and Establishing

Supranational Legal Principles:
At the heart of the EU's legal framework is the European Court of Justice (ECJ). Established
by the ECSC treaty in 1951, the ECJ is a federal court composed of judges from each member
state. Unlike many traditional federations, the EU has a court that not only oversees member
states' compliance with treaties but also has jurisdiction over corporations and individual
citizens within these member states.

The ECJ plays a pivotal role in interpreting EU treaties. It established the concept of "direct
effect," allowing individuals and corporations to claim protection from national laws that
contravene EU laws. Furthermore, the ECJ asserted the supremacy of EU law over national
laws, ensuring the uniform application of EU regulations across member states. The Court's
decisions have contributed significantly to the creation of a supranational legal order in
Europe.

Examination of the ECJ's Decisions and Their Impact on Member States' Sovereignty:
The ECJ's rulings have had a profound impact on member states' sovereignty. Despite initial
intentions of the EU treaties being akin to international agreements, the ECJ, through its
decisions, transformed these treaties into a source of primary law comparable to a
constitution. The Court established the "new legal order" principle, emphasizing the shared
sovereignty between member states and the EU.

The ECJ's concept of "direct effect" allowed individuals and businesses to challenge national
laws based on EU law violations, reinforcing the supranational legal framework. Moreover,
the Court's assertion of the supremacy of EU law meant that national courts must apply EU
law entirely, even if it conflicts with domestic legislation. This principle solidified the EU's
legal unity and reinforced the notion of a single European legal space.

In summary, the ECJ's role in interpreting EU treaties and establishing supranational legal
principles has reshaped the EU from a loose confederation into a more unified legal entity.
By prioritizing EU law over national laws and empowering individuals to challenge state
actions, the ECJ's decisions have significantly impacted member states' sovereignty, aligning
them with the broader goals of European integration.

Variations and Exceptions to Judicial Review:

In the document, several variations and exceptions to judicial review in federal systems are
discussed. These differences highlight the diverse approaches taken by different countries in
handling constitutional matters and jurisdictional disputes:
1. Australia:
In Australia, judicial review functions differently than in the United States. The High Court
of Australia, the nation's supreme court, plays a significant role in interpreting the
Constitution. However, the framers' intention to provide states' rights protection has been
challenged by the High Court's expansive interpretation of federal powers. The central
government's control over taxation and external affairs, coupled with conditional grant
mechanisms, has led to vertical fiscal imbalance and increased centralization.

2. Switzerland:
Switzerland stands out as an exception to the norm of judicial review. The Swiss federal
court was initially established as a civil court without the authority to adjudicate public or
constitutional law matters. Even after subsequent revisions, the court cannot challenge
federal laws, making it unique in the context of judicial review. Switzerland relies on its
system of direct democracy, allowing citizens to influence government decisions directly,
thereby moderating centralizing tendencies despite the absence of judicial oversight.

3. Canada:
In Canada, judicial review operates within the framework of parliamentary supremacy. The
Supreme Court of Canada has the authority to interpret the Constitution and review
legislation. However, the concept of "patriation" in the 1980s led to the transfer of
constitutional authority from the United Kingdom to Canada. While judicial review is firmly
established, certain political decisions, such as constitutional amendments, still require
substantial political consensus.

4. Germany:
Germany's federal system incorporates the principle of federal comity, emphasizing loyalty
to the federal order. The Federal Constitutional Court plays a crucial role in resolving
disputes and prompting legislative reforms. However, the introduction of judicial review has
not drastically altered the dynamics of German federalism due to the system's integrated
nature, minimizing the need for extensive litigation.

5. Other Federal Systems:

The document also briefly mentions other federal systems, including Spain, Belgium, and
South Africa, which have established constitutional courts exclusively concerned with
constitutional matters and judicial review. These countries have invested clear authority in
these courts for practicing judicial review, aligning them with the broader trends in federal
systems.

In summary, these variations and exceptions in judicial review demonstrate the diverse
approaches taken by different countries within federal systems. Whether through expansive
interpretations by supreme courts, reliance on direct democratic processes, or the
establishment of specialized constitutional courts, each nation tailors its judicial review
mechanisms to fit its unique constitutional and political context.