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1976 Judicial Review: Its Influence Abroad Donald P. Kommers Notre Dame Law School, [email protected]

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Recommended Citation Donald P. Kommers, Judicial Review: Its Influence Abroad, 428 Annals of Am. Acad. of Pol. & Soc. Sci. 52 (1976). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/1373

This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. ANNALS, AAPSS, 428, Nov. 1976

Judicial Review: Its Influence Abroad

By DONALD P. KOMMERS

ABSTRACT: The doctrine of judicial review, having been nourished in a legal culture and socio-political environment favorable to its growth, is America’s most distinctive contri- bution to constitutional government. Judicial review as historically practiced in the was duly recorded abroad, with varying degrees of influence and acceptability. During the nineteenth and early twentieth centuries, the influence of judicial review was most conspicuous in Latin America, where it was adopted as an articulate principle of numerous national , while most European na- tions consciously rejected it as incompatible with the prevail- ing theory of . , , and , although marginally influenced by the American experience, developed, as did several commonwealth nations, their own variants of judicial review. Since World War II, judicial review has emerged as a governing principle, partly in response to the excesses of prewar popular , in the constitutions of many countries, including those of emergent nations of Asia and Africa. But in nearly all of these new nations, including Latin American nations, judi- cial review has not developed into an effective instrument of limited government. On the other hand, it has worked well in , West Germany, and , whose postwar constitu- tions were strongly influenced by the United States. Recent experience shows that judicial review works best in advanced, middle-class societies firmly committed to the idea of limited government.

Donald P. Kommers is Professor of Government and International Studies and Adjunct Professor of Law at the University of Notre Dame. He is also Director of Notre Dame’s Center for Civil Rights. His M.A. and Ph.D. degrees are from the University of Wisconsin. He was recently an Alexander von Humboldt Fellow in the Law School of the University of Cologne, West Germany. His work on German politics and comparative constitutional law has been published both in the United States and the Federal Republic of Germany. His most recent book is Judicial Politics in West Germany: A Study of the Federal Constitutional .

I wish to thank Mr. Michael J. Wahoske, a Kiley Fellow at the University of Notre Dame Law School, for his assistance in the preparation of this article. 52 53

de Tocqueville, in De- system of government. It is worth ALEXISmocracy in America, observed noting at the outset that judicial that there was something very spe- review was not an explicit invention cial about the exercise of judicial of the . Rather, it was power in the United States. The formally proclaimed by the special characteristic, still pres- itself in the person of Chief Justice ent even as the French observer , whose celebrated correctly reported it, is &dquo;the right opinion in Marbury v. Madison of the judges to found their de- (1803) established judicial review cisions on the constitution rather as a mainspring of the American than on the ,&dquo;1 which means constitutional order. Marshall’s that judges are at liberty to refuse opinion, which had ample to enforce laws held by them to be in the colonial experience, advanced in violation of the Constitution. This the proposition that the Constitution doctrine of judicial review unques- is the &dquo;fundamental and paramount tionably is America’s most distinc- law of the nation,&dquo; a law of superior tive contribution to modern constitu- obligation binding upon all political tionalism. Nearly 50 years after the officials and all governing institu- founding fathers assembled in Phila- tions and in terms of which all laws delphia &dquo;to form a more perfect and public acts are to be judged. union,&dquo; Tocqueville wrote in his Marshall concluded, with a yawning classic treatise that &dquo;the representa- gap in his logic, that because judges tive system of government has been are bound by the Constitution, it is adopted in several states of Europe, within the particular competence of but I am not aware that any nation the Judiciary to declare a law void of the globe has hitherto organized if in conflict with the Constitution. a judicial power on the priniciple But whatever the deficiencies of now adopted by the Americans.&dquo;2 Marshall’s logic in justifying the In this our Bicentennial year, 150 ascription of such power to the Judi- years after Tocqueville wrote, we cial branch, Americans have since might ourselves glance abroad to see almost instinctively identified judi- what influence, if any, the American cial supremacy in constitutional doctrine of judicial review has ex- matters with limited government erted on other peoples. and the . Yet the idea that governments and JUDICIAL REVIEW AND AMERICAN political rulers must be subject to GOVERNMENT an order of higher law has ancient roots. The of Athenian Any assessment of the influence of obligation the American doctrine of judicial judges to apply only as con- sistent with law is review abroad needs to be pre- higher probably the oldest historical antecedent of ceeded by some discussion of the ideas and forces which contributed judicial review. Medieval princes to the growth and durability of judi- and kings were also subject to nat- cial review in the United States and ural and , and this prin- to its significance in the American ciple remained prevalent throughout the Middle Ages. For a brief time, 1. Alexis de Tocqueville, in judges of the French Parlements dur- America (London. Oxford University Press, the 1952), p. 79. ing Ancien Regime also claimed 2. Ibid., p. 77. a power to nullify laws and execu- 54 tive that were in violation powers, all lawmaking authority of the fundamental laws of the realm. within the state was vested in the In England, Sir Edward Coke’s sovereign , while the role opinions asserted the supremacy of of the independent judiciary was to the and the Magna interpret the legislature’s will and Charta over parliamentary statutes, to administer the law as written. and many colonial leaders who were For a judge to set aside the law, influenced by Coke-especially whatever the reason, was to the by his Institutes-and opposed European mind, schooled in analy- to the exercise of the royal preroga- tical , the very defini- tive over their affairs formally ap- tion of arbitrary government. Thus, proved of the doctrine of judicial given such a tradition, the liberty supremacy. But the principle that and security of the individual in judges should be the guardians of much of Europe was identified the constitution prevailed only in with equal administration of justice America. In England, Coke’s view under law, Europe’s principal con- was totally rejected, and the princi- tribution to the theory of constitu- ple of parliamentry supremacy was tionalism. This notion of constitu- fully affirmed in the aftermath tional government did not imply of the conflict between king and democratic political institutions, Parliament. In , the coming however. Parliamentary democracy, of the French Revolution and the which also excluded judicial review, accompanying doctrine of popular was England’s contribution to con- sovereignty ended the judicial prac- stitutionalism ; to this heritage the tice of voiding . Indeed, United States added the concept of it was the French doctrine of separa- judicial review. tion of powers that prevailed in most of Europe. LIMITS ON PRIVATE AND GOVERNMENTAL POWER Although judicial review as known in the United States was rejected in The American notion of free Europe, a firm tradition of constitu- government provided very suitable tional government existed in the soil for the growth of judicial review. positivistic legal cultures of the con- The reasons for its success here may tinental tradition. This tra- possibly help to explain both its dition, unlike the Anglo-American acceptance and its rejection in other tradition, regarded the state- parts of the world. Moored to the whose general will was personified political theories of Locke and Mon- by a national assembly-as the tesquieu, the founders firmly be- source of all law, even of constitu- lieved in the respective doctrines of tional law. It also insisted that law natural rights and balanced govern- be founded on human reason and ment. Balanced government to them promulgated for the commonweal. was synonomous with limited Rationality and generality were thus government. To avoid the concentra- indispensable of a govern- tion of political power in any one ment ruled by law. Generality person or institution, they housed ensured that citizens would be the familiar triad of government treated equally under the law, while powers-, legislative, and rationality required that the law judicial-in separate structures itself be reasonable. Under the buttressed by a system of checks and European variant of separation of balances. At the same time, they 55 believed that government existed to before a court of justice by the choice the natural protect rights of men and of parties, or by the necessity of the to establish a political order de- case.&dquo;3 He also noted that laws which to signed help men pursue their judges refuse to apply, owing to their personal happiness. The fulfillment constitutional invalidity, tend to lose of private ambition and aspiration, their &dquo;moral cogency,&dquo; which he endorsed and assisted by a solicitous wisely discerned to be the real signif- government, came close to a good icance of judicial review in America. American definition of the public interest in the eighteenth and early THREE PERIODS OF INFLUENCE nineteenth centuries. Yet the founders regarded all State and federal authority: 1789- power as potentially corruptible, 1870s and they wondered how to limit pri- vate as well as governmental power. The story of judicial review’s Madison provided one answer, indi- influence abroad is partly inter- cating that private power could be woven with the distinct roles played brought under control within a con- by the United States stitutional order which fostered the in various historical eras. (Like all diversity and multiplication of fac- historical epochs, these eras nat- tions. If enough factions occupied urally overlap, but for our purposes the political space of the new Ameri- a liberal division of Supreme Court can Republic, he argued, the power history is appropriate.) During each of each faction would be checked by of these eras, judicial review as the countervailing power of compet- practiced in America was duly re- ing factions, allowing not one of corded abroad, with varying degrees them to gain a monopoly of power. of influence and acceptability. In the At the same time, the power of gov- first period, from 1789 to the mid- ernment generally would be held at 1870s, the Supreme Court was pre- bay by the proliferation and cumula- occupied with defining the bound- tive influence of private institutions ary between state and federal au- and groups. Thus, in Madison’s thority and buttressing its own thought-which became our con- authority as well in the American ventional wisdom-freedom ulti- political order. It was this history mately was to be based upon the that was most familiar to constitu- interplay and countervailing thrusts tion-makers in Latin America and of private and public power. continental Europe when they be- Judicial review worked supremely gan to erect representative republics well within a legal order character- and draft written constitutions in the ized by an obsession with individual nineteenth century. liberty, an economic order based on During this period, the American private , and a constitu- influence was most notable in Latin tional order of separated powers. America. Although rooted in the Tocqueville saw this clearly. &dquo;Few civil law tradition, various Latin laws can escape the searching analy- American countries, copying from sis of the judicial power for any the colossus of the north, entrusted length of time,&dquo; he wrote, &dquo;for there the power of judicial review to their are few which are not prejudiced to courts on a broad scale. The Argen- some private interest or other, and tine constitution of 1860 and the none which may not be brought 3. Ibid., p. 81. 56

Brazilian constitution of 1891 con- provided for a of constitu- tained provisions on judicial review tional review modeled after the consciously copied from the Ameri- American Supreme Court. &dquo;Consti- can experience. These constitutions, tutional review,&dquo; however, had a like the Canadian constitution of different meaning in Europe than 1867 (British North American Act) and did &dquo;judicial review&dquo; in America. the Australian constitution of 1900, &dquo;&dquo; was a established judicial review as a power exercised by a specialized necessary concomitant of federalism. to decide con- Marshall’s opinion in McCulloch v. stitutional controversies only be- Maryland (1819) constituted a sig- tween organs and levels of govern- nificant point of departure for the ment. But these specialized courts, consideration of federal-state rela- which also existed under several tions by the judiciary in each of these mid-nineteenth-century German nations. , which has also had state constitutions, were not attribut- a system of government with strong able to any American influence; federal characteristics, has had a rather, they had their institutional more limited variant of judicial antecedent in the fifteenth-century review. Nevertheless, Tocqueville court of the Imperial Chamber, be- himself has been credited with in- fore which warring princes took fluencing the adoption of judicial their disputes. Uniquely European, review by Mexico’s constitution of these institutions nevertheless con- 1857. As one legal scholar reports, stituted convenient vehicles for the &dquo;the immediate source of amparo reception of judicial review more re- [a proceeding initiated by an indi- lated to the American pattern. Swit- vidual citizen to challenge an arbi- zerland was the real pioneer of trary governmental act] must be European judicial review. Under the found in the American institution of 1848 Swiss bill of rights, a citizen judicial review transmitted to the could challenge a cantonal (state) Mexicans through Tocqueville’s law allegedly in violation of a funda- Democracy in America.&dquo;4 Finally, mental right in the federal parlia- adopted the American ment. Parliament, if it saw fit, plan of judicial review in 1871. might then place the case before the Shifting briefly to Europe, we find federal court. Still, the legal order that judicial review was well known predominant in Europe in the 1800s to many German legal scholars in the was generally incompatible with ju- early nineteenth century through dicial review, and even in those the classic work on American con- countries where traces of American stitutionalism by Robert von Mohl.55 influence were visible, the prin- Von Mohl, a member of the Frank- ciples of popular sovereignty and furt Parliament, had a hand in draft- the European variant of separation ing the constitution of 1848, which of powers remained wholly uncom- promised by judicial review. 4. Richard D. Baker, Judicial Review in Mexico (Austin: The University of Texas and Press, 1971), p. 33. Rights of property: 5. For a discussion ofvon Mohl’s influence, 1870s -1937 see Gottfried Dietze, "Robert von Mohl, In the second of Germany’s de in period judicial Tocqueville," Dietze, ed., the Essays on the American Constitution (Engle- review, covering late postbellum wood Cliffs, N.J.: Prentice-Hall, Inc., 1964), period era down to 1937, the Su- pp. 184-212. preme Court used its authority in 57 large measure to protect the rights struck down. Their legal orders were of contract and property against simply not congenial to the principle invasion by both state and federal of judicial supremacy in constitu- governments. Mirroring the entre- tional matters. The Polish constitu- prenurial spirit of a &dquo;gilded age,&dquo; tion of 1921 actually banned the and infused ideologically by social courts from reviewing legislation on Darwinism and the Gospel of constitutional grounds.~7 Wealth, the Supreme Court wove a In continental Europe, the Ameri- garland of constitutional principles can influence was most perceptible that crowned American capitalism. in Germany, where judicial review This history was most familiar to was debated in the Weimar National European nations before and after Assembly. The &dquo;founding fathers&dquo; World War I as they sought to anchor seemed about evenly split on judi- representative government in their cial review, for it missed being own newly written constitutions. expressly put into the 1919 consti- Austria, Germany, and Czecho- tution by a single committee vote. , following the European But the founders did not expressly tradition of constitutional review, forbid judicial review either, failing established specialized constitu- to heed the warning of Hugo Preuss- tional independent of the Germany’s leading authority on con- regular judiciary and vested with stitutional law-that the courts jurisdiction limited to appeals by would exercise judicial review if the national or state governments and, constitution did not expressly forbid in the case of , to the it. While some spokesmen argued Supreme Court of Justice. Often that judicial review was incompat- referred to as &dquo;political courts,&dquo; they ible with the principle of separation were designed largely as forums in of powers, other more socially con- which to settle constitutional dis- scious delegates were undoubtedly putes between levels and units of aware of the conservative uses of government. Individual citizens judicial review in the United States. were not permitted to file petitions They may also have been mindful in these tribunals. , the of an 1875 decision by the Hanseatic father of the Austrian constitution of Court of Appeals which invalidated 1920, although acknowledging his a local as violative of the right debt to American constitutional to property under the Bremen con- practice in prescribing the consti- stitution. (The first recorded in- tutional court, was convinced of the stance of judicial review in Ger- superiority of a system which com- many, the decision was quickly pletely separated constitutional overruled by the Imperial Court from ordinary .~ On the which rejected the authority of other hand, the regular judicial judges to review the constitution- establishments of , , ality of laws.)8 and Rumania claimed to have the 7. A of review in all of the to review survey judicial authority legislation, countries discussed above may be found in mainly to protect property rights, Charles Grove Haines, The American Doc- but very few laws actually were trine of Judicial Supremacy (New York: Russell G. Russell, Inc., 1959), pp. 573-662. 6. See Hans Kelsen, "Judicial Review of 8. See Donald P. Kommers, Judicial Poli- Legislation: A Comparative Study of the tics in West Germany. A Study of the Federal Austrian and the American Constitutions," Constitutional Court (Beverly Hills, Cal.. Journal of Politics, vol. 4 (1942), pp. 183-200. Sage Publications, Inc., 1976), p. 36 58

Preuss’s prediction came true as duras, 1894; , 1901; , several German high courts claimed 1911; , 1918; , 1919; the power of judicial review even , 1925; and , 1928) over national laws. Indeed, the High adopted various aspects of American Court of Justice voided two national judicial review. Most constitutional laws in the 1920s, one on the ground provisions favoring judicial review that the constitutional right to prop- were adopted in unthinking imita- erty had been violated, which gener- tion of the American model, for judi- ated another full-dress debate on cial review simply was not suited judicial review by German legal to regimes marked by political insta- scholars. Still, Walter C. Simon, bility and constitutional disconti- president of the High Court during nuities. Only in the then relatively this time (1922-29), was disap- durable constitutional orders of pointed in his effort firmly to estab- Chile, , and did lish judicial review. Clearly influ- judicial review become an operative enced by the American experience, principle. he noted: &dquo;During the seven years The origin of judicial review in of my office, I have tried to heighten , , Ireland, and other the position of the Reichsgericht countries with present or past links unceasingly but unsuccessfully. I to the British Commonwealth is not wanted it to be like the Supreme so clearly the product of American Court of the United States, a high influence. Their high courts are the organ of the Commonwealth equal lineal successors of the old Privy in rank to the Cabinet, having imme- Council. As McWhinney remarks, diate intercourse with the President &dquo;In its historical origins, judicial of the Republic .... Until now, review of the Constitution in the the Reichsgericht has not found a Commonwealth Countries was Chief Justice Marshall.&dquo; But Simon simply part of the apparatus of betrayed a revealing distrust of the Empire-a projection of Imperial political process when he remarked power in legal institutional form.&dquo;lo further: Here also judicial review developed on a far more restricted scale than ... in a com- my opinion republican in the United States. monwealth will never find a check on the McWhinney’s indicates the overbearing power of parliamentari- summary multiple anism and the secret influence of min- influences that account for judicial isterial if the Supreme review in these countries: Court is not perfectly independent Judicial review of the constitution in the and on the same with both the footing Commonwealth Countries is an other of the state.9 today powers organic growth stemming in part from In the late nineteenth and early the accidents of past imperial associa- twentieth centuries, judicial review tions ; in part from conscious reception, continued its growth, at least in in more recent times, of American legal and in from the terms of its as a ideas; part pragmatic, acceptability prin- trial and At least 10 additional Latin error, case-by-case, experiential ciple. development inherent in the Common American nations (, 1880; Law and Common Law-derived legal Brazil, 1891; Colombia, 1886; Hon- systems.’1 9. Walter C. Simon, "Relation of the Ger- 10. Herman Mosler, ed., Constitutional man Judiciary to the Executive and Legis- Review in the World Today (Berlin: Carl lative Branches," American Association Heymanns Verlag KG, 1962), p. 77. Journal, vol. 15 (1929), p. 762. 11. Ibid., p. 87. 59

Civil rights: 1937-present The [Supreme] Court exists in its form because of the In the third of present mainly period judicial American victory in World War II and from 1937 to review, down the pres- subsequent allied Occupation of Japan. ent time, the Supreme Court has On the surface, the legal reforms of the been heavily concerned with protec- Occupation were monumental-espe- ting the rights of defendants and cially the establishment of a democratic those rights of conscience specified constitution and the creation of an in the First Amendment and incor- independent Supreme Court to interpret porated into the Fourteenth Amend- the constitution and protect human ment’s concept of The rights through the exercise of judicial &dquo;liberty.&dquo; review. 12 right to property has still been clearly within the ambience of the American influence was less direct Supreme Court’s protective powers, in Austria, Germany, and Italy, but although the Court has applied still the exercise of judicial review harsher standards of review toward was cited and debated in their legislation impinging upon First respective constitutional conven- Amendment freedoms than toward tions. The Europeans, of course, legislation affecting property rights. were themselves determined to This history, along with the total engineer new regimes of liberty experience of judicial review in the and to mend the cracks in their post- American system of government, has 1918 constitutions which had per- been most influential in the estab- mitted popular majorities to get out lishment of judicial review in many of hand and through which dictators countries of the world in the post- had thrust their ugly heads. Judicial World War II era. review was available as a means for Judicial review spread quickly limiting popular government and for around the world in the first two protecting basic rights; but Austria decades following the war. But the and Italy, in establishing a judicial American influence was most mani- review mechanism, followed the fest in the immediate postwar years civil law pattern of creating a special when and the defeated nations constitutional outside of the of the Second World War adopted regular judicial establishment. judicial review as a key feature of Austria reestablished its prewar their constitutional orders. India, Constitutional Court and Italy having just gained her indepen- created a new Constitutional Court dence, established a Supreme Court imitative of the Austrian model. with powers even greater than that The German Federal Constitu- of the U.S. Supreme Court. A reading tional Court deserves more detailed of the debates of the Constituent comment if only because of the Assembly, which drafted the consti- major role it has played in the poli- tution of 1950, leaves no doubt of tical system of the Federal Republic. India’s debt to constitutional practice Created by the Bonn Basic Law of in the United States, just as Ameri- 1949, it owes its existence only can constitutional jurisprudence is indirectly to the Occupation Powers. heavily reflected in the subsequent True, when the military governors growth of Indian constitutional law. commissioned the Germans to draft In the American influence Japan, 12. Glendon Schubert and David Danel- was decisive. One author- J. absolutely ski, eds., Comparative Judicial Behavior ity on the Japanese legal order (New York: Oxford University Press, 1969), writes: p. 122. 60 a new constitution, they made clear phenomenon that has also occurred that the constitution &dquo;should pro- in the United States. 14 vide for an independent judiciary to The German court’s authority review federal legislation, to review actually exceeded that of the United the exercise of federal executive States Supreme Court, for the Consti- power, and ... to protect the civil tutional Court was authorized to rights and freedoms of the individ- rule, within the framework of what ual.&dquo;13 But there is no to is called an abstract judicial review, suggest that judicial review was on the validity of federal and state forced upon the Germans. Fol- laws merely upon the request of the lowing their own tradition of consti- federal or a state government or tutional review, they created the upon the petition of 100 members Federal Constitutional Court- of the lower house of the federal paralleled by a constitutional court Parliament. The court was also in each of the German states-to empowered to determine, at the hear constitutional controversies request of the federal government, only, mainly between branches and the of political levels of government. In this re- parties. (So far, the court has de- spect, the Constitutional Court was clared two parties unconstitutional, to serve as the successor to the namely a neo-Nazi party in 1952 and Weimar Republic’s High State Court the Communist party in 1957. Both (Staatsgerichtshof), not to be con- were found to be undemocratic in fused with the Supreme Court structure and antagonistic to the (Reichsgericht), which stood at the principles of democracy.) apex of the regular judicial system. The adoption of judicial review While the judges of all the regular in Europe was not regarded with German courts were barred from de- universal favor, however. Some claring laws void on constitutional observers, fearing judicial intrusion grounds, they were authorized by into politics, had trouble reconciling the Basic Law to certify constitu- judicial review with parliamentary tional questions arising in the democracy. Others argued that judi- normal course of litigation to the cial review simply would not work Federal Constitutional Court for in Europe’s legal environment, a decision. Conferring upon the indi- reservation that seemingly would vidual citizen the right to file a apply to Japan with even greater constitutional complaint before the force. Was it really possible for court was unprecedented in Ger- constitution-makers other than many, and indeed was only statu- those with sugar plums dancing in torily based until 1971, when the their heads to believe that judicial citizen’s right to complain directly review could be made to work auto- to the Constitutional Court was matically by constitutional fiat? rooted in the Basic Law itself. Even- Would judicial review survive in a tually, the court came to play a role political culture where the judiciary far more significant in the protec- historically has been subordinated tion of individual rights than as an to legislative and executive author- arbiter of federal-state relations, a ity ? Karl Loewenstein, writing in 1951, frankly doubted that judicial 13. Germany 1947-1949: The Story in Documents (U.S. Department of State Publi- 14. See Kommers, Judicial Politics, pp. cation 3556, 1950), p. 278. 215-32. 61

review would &dquo;integrate itself into tive supremacy.&dquo;16 Only the presi- [European] political life as the dent of the republic, the prime unique regulatory force it is in the minister, or the president of either United States.&dquo;15 house of parliament may ask the The Europeans themselves, and council to review a , before particularly the Germans, were well its promulgation, on the ground of aware of the abuses of judicial power constitutionality. that could occur in a constitutional In the last two decades, judicial order based on judicial review. That review has spread to other parts of was one reason for the concentration the world. A 1970 study revealed of constitutional litigation in sepa- that the national constitutions of rate courts. They were particularly nearly 60 nations provided for some fearful of the American system of measure of judicial review. Most of judicial selection, and consciously these constitutions were authored refused to bestow life-time tenure by the emergent nations of Asia, on the justices. Thus, their justices Africa, and some additional Latin are nominated and chosen for single American countries. 17 Their judicial non-renewable terms of 12 years by review structures were based on the two houses of parliament, not by either American or European prac- the executive. This system of recruit- tice, or variations between the two. ment, along with compulsory retire- Nations in which Anglo-American ment at the age of 68, constitutes a influences were strong-for example, strong check on the court and assures Burma, , , Ni- that its political complexion will not geria, , , and the differ substantially from that of par- -tended to confer liament or the nation. In Italy and broad powers of judicial review on Austria, parliament also shares, their highest appellate courts of civil along with the executive and the and criminal jurisdiction. Countries regular judiciary, in the recruitment under continental European in- of constitutional court judges. fluences-for example, , It is of some interest to note, finally, , the that France had remained steadfast Congo, and -tended in its opposition to judicial review to establish specialized constitu- until quite recently. In a substantial tional courts of limited review. In departure from the French tradition other countries-for example, Da- of parliamentary supremacy, the homey, , , , and 1958 constitution provided for a Upper Volta-the highest appellate constitutional council for the pur- courts were authorized to hand pose of reviewing the constitution- down only advisory opinions on ality of laws by parliament. But the constitutional questions. council was deliberately designed as &dquo;a watchdog on behalf of execu- 16. Jack Hayward, The One and Indivisible French Republic (New York: W. W. Norton & Company, Inc., 1973), p. 122. 15. Karl Loewenstein, "The Value of Con- 17. Donald P. Kommers, Cross-National stitutions in Our Revolutionary Age," in Comparisons of Constitutional Courts: Constitutions and Constitutional Trends Toward a Theory of Judicial Review, pre- Since World War II, ed. Arnold J. Zurcher pared for delivery at the Annual Meeting of (New York: New York University Press,1951), The American Political Science Association, p. 217. Los Angeles, Cal., 8-12 September 1970. 62

JUDICIAL REVIEW ABROAD: Anglo-Americans often tend to PRINCIPLE AND PRACTICE associate judicial review with con- What larger meaning can be drawr ~ stitutional governments character- from this brief survey of judicia j ized by federalism, separation of review around the globe? Initially powers, a bill of rights, and an it needs to be remarked that the 1 independent judiciary. The consti- spread of judicial review as a formal / tutions of the world do reveal the constitutional device presence of judicial review as a con- says nothing ,’ about its operation or effectiveness stitutional principle in the large Indeed, the judicial review powers majority of the world’s 17 federal of many of the countries listed above , systems of government. Yet it would have never been invoked. This is be stretching matters to say that true of most African nations, nearly judicial review is a functional con- all of whose constitutions were dition of federalism, for judicial . review written in the 1960s and many ol is found in numerous non- whose regimes have since collapsed federal systems. By the same token, or at least at are under the control of a single the level of constitutional party or governed by a military junta. principle, judicial review seems not In Latin America, too, judicial to be associated with any given . review as an operative principle of pattern of executive-legislative rela- constitutional government-for tions, although it is usually found in example, in Chile, , and regimes where the judiciary is Brazil-has been washed away by wholly independent of the executive the rising tide of military dictator- and legislative branches. ships. A close look at the nations in which Ordinarily, we have tended to judicial review has developed into associate judicial review with Anglo- a vital regulatory device-for American influences and, as this example, Japan, Australia, West essay has shown, these have been Germany, Ireland, Canada, Italy, substantial in the development of India (until very recently), and sev- judicial review in many parts of the eral Latin American countries-sug- world, even in regimes where the gests that certain political conditions legal order and political tradition and legal values are as important as were at variance with the Anglo- constitutional structure in sustaining American experience. Contrary to a regime of judicial review. The the early expectations of Loewen- effective exercise of judicial review stein and other skeptics, judicial in these countries seems to be asso- review has worked, and rather effec- ciated, with few exceptions, with the tively, in the &dquo;alien environments&dquo; following legal and political condi- of Japan, Italy, Austria, and West tions : a political order marked by a Germany. The acceptance of the durable constitutional tradition; a principle of judicial review in so pluralistic society with autonomous many other nations may possibly groups free to oppose the govern- have more to do with the idea of a ment ; a high degree of individual written constitution, as McIlwain liberty; an advanced economy, suggested, than with any particular usually based on private enterprise; genius or influence of American significant independence of execu- . 18 tive, legislative, and judicial author- 18. Charles McIlwain, Constitutionalism ity ; a political culture characterized and the Changing World (New York: The by moderation and a stable compe- Macmillian Company, 1939), p. 248. titive party system; and a legal cul- 63 ture that places a high value on the tion with the need for social policies judicial role as an instrument of con- and programs sired by the legisla- stitutional change. These are gen- ture. In fact, the Indian Supreme erally the characteristics of middle- Court was a causal factor in the class societies whose governments recent crisis of democracy in that are circumscribed by substantial country. A major constitutional de- -controls. The judicial system in such bate raged in Indian legal circles societies, suggests M. J. C. Vile, &dquo;is over the question of Parliament’s the expression of the determination power to amend the fundamental to insure that certain values are rights, particularly the right to prop- given priority at the expense of erty. In 1969, in a landmark case, the expediency or speed in the perfor- Supreme Court invalidated by a mance of certain types of govern- narrow six to five margin an act of mental tasks.&dquo;19 The most important Parliament nationalizing fourteen of these values are the high priority major banks .20 The furor in Parlia- placed on individual liberty, on the ment generated by the decision one hand, and political compromise prompted the Court actually to re- between contending interests, on verse itself in the 1973 Fundamental the other-the kind of social context Rights case.21 There, the Court that Madison associated with the emphasized the priority of &dquo;social notion of limited government. These justice,&dquo; in terms of which, the jus- liberal democratic values, so highly tices noted, all &dquo;fundamental rights&dquo; regarded in Japan and in advanced must be interpreted. One justice Western societies, are largely rejected even proceeded to undermine the in the Third World where national doctrine of judicial supremacy: &dquo;A unity and the coordination rather modern democratic constitution is, than the separation of powers is to my mind, an expression of the vigorously stressed. Regarded as a sovereign will of the people, ... bourgeois luxury, judicial review is a legal sovereignty, which was pre- likely to be increasingly rejected by viously vested in the British Parlia- these societies in principle as well ment.&dquo;22 But the constitution was as in practice. Judicial review also also broadly interpreted to sustain lacks support in advanced societies the right of Parliament to amend the under Communist domination. So- fundamental rights. The same jus- cialist constitutions, like that of the tice wrote: German Democratic Republic, In the background of the Indian Consti- which no recognize meaningful tution, the fundamental rights were social and indi- distinction between intended to make all citizens and per- vidual interests and whose purpose sons appreciate that the paramount it is to install a political economy law of the land has swept away privilege under the tutelage of the working and has laid down that there is to be class, cannot very well tolerate a perfect equality between one section of another in the matter separation of powers of the tradi- the community and tional Western of all those rights that are essential for variety. the material and moral of India constitutes a classic of perfection study man.23 a struggling democratic society which has sought to reconcile basic 20. Salak Nath v. State of Punjab, 2 S. C. R. freedoms and their judicial protec- 762 (1967). 21. Kesavanda v. State of Kerala, 60 All 19. M. J. C. Vile, Constitutionalism and Indian Reporter 1461 (1973). the Separation of Powers (Oxford: Clarendon 22. Ibid., p. 1969. Press, 1967), p. 339. 23. Ibid., pp. 1971-72. 64

Nevertheless, the Supreme Court Tocqueville did, and judicial review remained a potential break on has been an important aspect of that governmental action in future cases. experiment. On the whole, and par- Thus, when Prime Minister Indira ticularly in this century, it has served Gandhi (through the president) de- the cause of liberty in the United clared emergency rule in India in States. And those nations which June of 1975, the full scope of have adopted judicial review have judicial review was among the first also, for the most part, placed their privileges of the constitution to be basic constitutional rights under the sacrificed for the sake of &dquo;national protection of the judiciary. But, of unity,&dquo; along with the basic freedoms course, the liberties of a people of speech, press, and political asso- clearly do not depend upon judicial ciation. review any more than democracy does, for judicial review itself is an CONCLUSION extremely fragile institution. It has proved workable and durable only This essay has sought to trace the in stable constitutional democracies influence of American judicial re- which, like the United States, have view abroad. Men and nations alike been willing to tolerate diversity and have marveled at the American a pluralism of interests while yet experiment in democracy, even as seeking equal justice under law.