Judicial Review in Modern Constitutional Systems

The problem of guarding the constitution is fundamental in any political system. If the term “constitution” is given a very broad definition, such dictatorial devices as powerful secret police and special tribunals for the safety of the state may be regarded as means for the protection of the “constitution” of a totalitarian regime. However, western democracy does not rely upon repressive means for safeguarding the constitution, except in times of crisis when use is made of martial law, the state of siege, and constitutional dictatorship. For normal times, western democracy has developed constitutional means of protection that essentially resemble ordinary legal and political processes, such as the amending process, special deliberative bodies, and judicial review. This study is concerned with judicial review as a means of guarding against legislative encroachments on the constitution. The acceptance of judicial review in national constitutional systems will be traced historically, with emphasis upon twentieth-century developments. Some attention will be given to the historical background of judicial review and to its theory and practice under various modern constitutions, but no systematic treatment of these subjects is attempted.