enjoy neither the proper legislative power nor the democratic legitimacy of an
elected parliament. And yet, a case can be made that judicial review is a necessary
or at least a useful institution to have.
8.2.8.1 Reasons for Judicial Review of Legislation
Checks and Balances First, judicial review of legislation can be an element in the
checks and balances between state organs. The judiciary then acts as a check upon
the legislature. The idea that courts must check upon the legislature has not
remained undisputed, however.
In the United Kingdom, the notion of the supremacy of Parliament implies that the will of
the legislature cannot be questioned by the courts.
In the Netherlands, it is the lawmaker who is entrusted with respecting the Constitution
when making laws, not the judge.
In France, judicial review was not possible until 2008, when the Constitution was changed
to allow judges to refer questions of constitutionality to a special organ, the Constitutional
Council. Before that, the separation of powers was taken to imply that judges should be
separated from law-making and therefore should not question the validity of laws.Will of the People A second rationale for judicial review is that it upholds the
supremacy of the constitution and thereby, in systems based on popular sover-
eignty, protects the will of the people itself, as is expressed in that constitution.
This was the reasoning in the 1803 US Supreme Court decision in the famous caseMarbury
v. Madison: it is clear that the Constitution is higher in rank with respect to ordinary laws,
and that judges are obliged to let the Constitution prevail over such ordinary laws if the two
are in conflict, due to the fact that Congress had passed a law that violates the Constitution.Protection of Minorities A third argument is based on the assumption that courts,
situated at a certain distance from politics, are more inclined to protect individuals
and minorities against majorities that control lawmaking institutions and that a
democracy must also protect such minorities.
8.2.8.2 Decentralized Systems
A very fundamental organizational distinction regarding judicial review is whether
the review is carried out by all courts in a system or by one special constitutional
court. In a decentralized system, the constitution is a norm that all judges must
uphold whenever they are asked to apply a law whose validity they doubt. The
power of judicial review is in that case linked to the regular jurisdiction of all courts
to resolve conflicts of norms before resolving disputes between parties.
The judicial review system in the US is strictly decentralized: there is nothing special about
the Supreme Court, other than the fact that it is the highest in the federal judicial hierarchy.178 A.W. Heringa