Conclusion The American and Westminster Models

This concluding chapter identifies the four major causes of the growth and origin of judicial review in the G-20 common law countries and in Israel. First, the need for a federalism umpire, and occasionally a separation of powers umpire, played a major role in the development of judicial review of the constitutionality of legislation in the United States, in Canada, in Australia, in India, and most recently in the United Kingdom. Second, there is a rights from wrongs phenomenon at work in the growth of judicial review in the United States, after the Civil War; in Canada, with the 1982 adoption of the Canadian Charter of Rights and Freedoms; in India, after the Indira Gandhi State of Emergency led to a massive trampling on human rights; in Israel, after the Holocaust; in South Africa, after racist apartheid misrule; and in the United Kingdom, after that country accumulated an embarrassing record before the European Court of Human Rights prior to 1998. This proves that judicial review of the constitutionality of legislation often occurs in response to a deprivation of human rights. Third, the seven common law countries all borrowed a lot from one another, and from civil law countries, in writing their constitutions. Fourth, and finally, the common law countries all create multiple democratic institutions or political parties, which renders any political attempt to strike back at the Supreme Court impossible to maintain.

Introduction The Birth and Growth of Judicial Review: 1607–2020

This introductory chapter discusses how judicial review of the constitutionality of legislation has usually emerged historically for a combination of four reasons. First, judicial review of the constitutionality of legislation is a response to a nation’s need for an umpire to resolve federalism or separation of powers boundary line disputes. The second main cause of the origins and growth of judicial review of the constitutionality of legislation is what can be called the rights from wrongs hypothesis; judicial review very often emerges as a response to an abominable deprivation of human rights. The third major cause is the out-and-out borrowing of the institution of judicial review of the constitutionality of legislation from either the United States’ model; the German Civil Law model; and, most recently, from the Canadian Second Look judicial review constitutional model. The fourth major cause is the existence of a system of checks and balances, which gives Supreme Courts and Constitutional Courts political space to grow in. Revolutionary charismatic constitutionalism can also lead to the growth of judicial review as Professor Bruce Ackerman has explained in an important new book, REVOLUTIONARY CONSTITUTIONS: CHARISMATIC LEADERSHIP AND THE RULE OF LAW (2019).

The Diffuse and Second Look Models of Judicial Review

This chapter examines the two models of judicial review that exist in the common law countries: the Diffuse Model and the Second Look Model. The Diffuse Model of judicial review originated in the United States and has spread to India, Canada, Australia, the United Kingdom, most of the countries of Latin America, the Scandinavian countries (except for the Netherlands), and Japan. It is premised on the idea that a country’s written constitution is its supreme law and that courts, when deciding cases or controversies that are properly before them, are thus duty-bound to follow the constitution, which is supreme law, and not a contrary statute whenever those two items conflict. Meanwhile, the essence of the Second Look Model of judicial review is that a Supreme or Constitutional Court ought to have the power of judicial review, subject to some kind of legislative power of override. This, it is said, best harmonizes the advantages of a written constitution and a bill of rights enforced by courts with the imperatives of democratic self-government. The underlying goal is to obtain the advantages of both constitutional government and also of democratic government.

The Common Law Legal Tradition: First Things First

This chapter explains briefly the origins and development of the common law tradition in order to better understand the rise of judicial review in the seven common law countries discussed in this volume. The common law legal tradition is characterized historically, in public law, by limited, constitutional government and by forms of judicial review of the constitutionality of legislation. In private law, the common law tradition is characterized by judge-made case law, which is the primary source of the law, instead of a massive code being the primary source of the law. The common law tradition is also characterized by reliance on the institution of trial by jury. Judges, rather than scholars, are the key figures who are revered in the common law legal tradition, and this is one of the key things that distinguishes the common law legal tradition from the civil law legal tradition. The common law legal tradition emphasizes judicial power, which explains why it has led to judicial review in the countries studied in this volume. It is the prevailing legal tradition in the four countries with the oldest systems of judicial review of the constitutionality of legislation: the United States, Canada, Australia, and India. Thus, judicial review of the constitutionality of legislation in these four countries is very much shaped by common law attitudes about the roles of judges.

The United States: Creation, Reconstruction, the Progressives, and the Modern Era

This chapter focuses on the origins and growth of judicial review of the constitutionality of federal and state legislation in the United States. American judicial review emerged from the vertical federalism umpiring of the King-in-Council, which reined in errant colonies; and from the open political space created by bicameralism, the separation of powers, and federalism, which gave the federal courts the political leeway to engage in judicial review of the constitutionality of federal and state laws. American judicial review took its present form of allowing horizontal separation of powers and enumerated powers vertical judicial review during the critical years between 1776 and 1803 when the faith of the American people shifted away from state legislatures and state governments and toward stronger executives and courts and a much stronger national government. This theory is set forth correctly by Professor Gordon S. Wood in both articles he has shared with me and in conversation. The addition of the three Reconstruction Amendments, and the enormous statutory expansions of federal court jurisdiction and of the number of lower federal court judges after the Civil War, occurred for rights from wrongs reasons. They led, after the incorporation of the Bill of Rights against the states between 1940 and 1970, to a situation where the Supreme Court now reins in errant state legislatures in much the same way the King-in-Council used to rein in errant colonial legislatures.

Canada: From Privy Council to Supreme Court

This chapter assesses the emergence of judicial review in Canada. Canadian judicial review emerged as a direct result of federalism and separation of powers umpiring by the Judicial Committee of the Privy Council (JCPC), which was Canada’s highest court from the adoption of the British North America Act in 1867 until Canada ended appeals to the JCPC in 1949. There was also, as Ran Hirschl would argue, an element of elite hegemonic entrenchment by imperial British colonial elites in the retention of the JCPC as the highest court of appeals in Canada from the creation of the Supreme Court of Canada in 1875 until Canada abolished appeals to the JCPC in 1949. Some Canadian elites tried and failed to end JCPC judicial review in Canadian cases in 1875. Canadian judicial review from 1867 to 1982 was exclusively concerned with federalism and separation of powers judicial umpiring because Canada had no constitutional Bill of Rights until 1982. There are thus two founding moments in the judicial review of legislation in Canadian history: firstly, the period from 1867 to 1982 when Canadian federalism and separation of powers law took shape as a result of federalism and separation of powers umpiring; and, secondly, the period from 1982 to the present, when the Supreme Court of Canada began vigorously enforcing the Canadian Charter of Rights and Freedoms. The emergence of judicial review from 1982 down to the present day is partly a rights from wrongs phenomenon, and it is partly the result of constitutional borrowing from the United States’s Warren Court.

The Commonwealth of Australia

This chapter traces the development of judicial review in Australia, which was modeled on the U.S. system of judicial review. Australian judicial review evolved out of a need for an umpiring body in federalism and separation of powers cases. Indeed, the original purpose of the Australian High Court under the Australian Constitution was to umpire federalism disputes between the Commonwealth and the six Australian states, which predated the federal government of Australia; and to ensure that the traditionally guaranteed rights and freedoms of British subjects under the common law and responsible parliamentary government were respected regarding Australia’s citizens. The Australian Constitution does not have a Bill of Rights or an enumerated Judicial Review clause, but it does limit and enumerate the broad powers of the Australian federal government. The Framers of the Australian Constitution, like the Framers of the U.S. Constitution, assumed that the courts would have the power of judicial review. As a result, there is, in Australia, judicial review in federalism and separation of powers umpiring cases but not in Bill of Rights cases since there is essentially no Australian Bill of Rights.

The Union of India: Umpiring and Rights from Wrongs

This chapter addresses the legal system as well as the origins and growth of judicial review in India. Judicial review originated and grew in India for five reasons. First, the history of Privy Council vertical federalism judicial review umpiring in the British Imperial period habituated Indians to the idea of judicial review of the legality of legislation in the sense of an imperial court reining in errant federal subunits. Second, the Framers of the Indian Constitution of 1950 deliberately decided to borrow the strong kind of judicial review described by Professor Gordon Wood from the U.S. Constitution, as well as borrowing from the United States, the idea of a judicially enforceable Bill of Rights. Third, former Prime Minister Indira Gandhi’s state of emergency, in the 1970s, led all the key players in Indian politics to want judicial review for rights from wrongs reasons. Fourth, judicial review in India has functioned as an umpire between the Union government and the states and among the states and various other entities of the Union of India government. Fifth, the Indian National Congress Party was part of an Ackermanian mass mobilization of people who successfully sought independence and which constitutionalized its charisma by peaceful means.

The State of Israel

This chapter studies the emergence of judicial review in Israel, which is a rights from wrongs reaction to the Holocaust, Nazism, and Fascism. Israeli judicial review did not arise to fulfill a need for a federalism or separation of powers umpire, since Israel is a unitary nation-state without a separation of powers system. Israeli judicial review emerged in weakened form as a consequence of the Zionist mass mobilization, which led to the creation of Israel and to the issuance of Israel’s Declaration of Independence, as is explained by Professor Ackerman. Israeli adoption of written constitutionalism and of judicial review was probably, in part, a function of borrowing. I consider, and reject, Professor Ran Hirschl’s argument that Israeli judicial review originated as a power grab by a fading Ashkenazi Israeli elite. I think that proportional representation has resulted in so many political parties holding seats in the Knesset that the Supreme Court has much more power relative to the legislature than is the case in a G-20 nation with a parliamentary, unitary with an electoral system like Japan’s. I also think Israel’s common law heritage contributed to its adoption of judicial review.

The Republic of South Africa

This chapter explores the origins and growth of judicial review in South Africa. Judicial review originated in South Africa in 1994 for rights from wrongs reasons. The great moral wrongs of racist Afrikaner and British imperial rule could only be overcome with a new Democratic Constitution, accepted by blacks and whites, with a very generous Bill of Rights that is enforced by a very powerful Constitutional Court. The African National Congress (ANC) party, led by Nelson Mandela, had called for a Bill of Rights and judicial review ever since the 1950s. In the 1990’s, the ANC got its wish. South African judicial review also result, in part, from borrowing. South Africans borrowed heavily from the Canadian Charter of Rights and Freedoms of 1982 and from the German Basic Law of 1949. South Africa particularly borrowed from Germany the idea of creating one very powerful Constitutional Court, which alone has the power of judicial review in South Africa.