Table of Contents
Introduction
Constitutional review refers to the examination and evaluation of a country’s constitution, usually with the intent of reforming or amending it. The constitution of any country is the supreme law that governs how that country is run. Constitutional amendment has been used by various countries to change their governance systems, from the introduction of gender quotas to the establishment of new branches of government, among others. This article will explore what constitutional review means, how it is carried out, and its impact on governance.
History of Constitutional Review
Constitutional review traces its roots to the idea of the social compact, which formed the basis of the constitution of the United States. During the drafting of the US Constitution in 1787, the framers used this notion of the social compact which stated that the governed must agree to be governed. From that time, the concept of constitutional review was seen as a way to reform the constitution as society’s perceptions and norms changed over time.
Types of Constitutional Review
There are two types of constitutional review: judicial and non-judicial.
1. Judicial Review
Judicial review is the process by which the judiciary, especially the highest court in the land, evaluates the constitutionality of laws, executive orders, and actions of the government. Once a case is brought before the court, the judges examine it in light of the provisions of the constitution until a verdict is made. In this way, the law, actions, or faults of the government, are evaluated against the constitution.
2. Non-judicial Review
Non-judicial review involves a more comprehensive and holistic review of the constitution. In non-judicial review, the constitution is evaluated by a non-judicial body such as a constitutional commission, a parliamentary committee, or an independent body.
Benefits of Constitutional Review
1. Promotes Democracy Constitutional review promotes democracy by providing a mechanism for evolving and adapting to change. As societal norms evolve, the constitution must change to adapt to those changes.
3. Enhances Prosperity Constitutional review helps to promote economic growth and prosperity by creating a stable and predictable legal framework within which business and investment can take place. A Constitution that promotes the rule of law and security to do business is likely to attract investors and promote economic growth.
Challenges of Constitutional Review
1. Political Expediency One of the biggest challenges of constitutional review is the political expediency. Reviewing a constitution can be an expensive and time-consuming process, so the willingness of political elites to commit to a thorough constitutional review might be limited.
2. Controversial Issues When political elites lack the political will to effectively review a constitution, it results in inadequate and superficial review, which can lead to a mismatch between a country’s needs and its constitutional framework. This is because, on several occasions, the review of the constitution opens up controversial issues that existing power elites may not want to be discussed in the open.
3. Resistance from Interest Groups When a constitution is reviewed, several interests might be threatened, thus making it challenging to get consensus from interest groups or getting their support. The result of this resistance is slow progress or a failure of the constitutional review process.
Conclusion
In conclusion, constitutional review is very crucial in democratic societies. It is a process that allows societies to evolve with the times, adapt to changes and respond adequately. Constitutional review is not only relevant, but it is also necessary, to ensure that the constitution accurately represents the needs of a society and its people. The benefits of constitutional review include promoting democracy, enhancing legitimacy, and promoting prosperity, although it can be challenging and politically expedient. It has become clear that constitutional changes may be essential when a society’s needs and values change over time.
Following the landmark case of Marbury v. Madison, judicial review became an intricate and significant part of the Federal judiciary system. As a member of the Federal judiciary, the Supreme Court now maintains the authority and power over the judging of cases under the express interpretation and explicit guidance of the United States Constitution.
Such a judicial review has enabled the viability of all aspects of law to be accountable if deemed unconstitutional. Judicial review abides completely in accordance to the Constitution as the “supreme law of the land.” In such a way the Federal judiciary must ensure that no State or Federal law be in any violation of it. Despite its advent in the Supreme Court, judicial review has also been instituted in various other Federal courts as well as State courts.
In general, despite the unconstitutionality of a law or statute, a court may not possess the power of judiciary review without the existence of some type of case being pursued or controversy concerning it. In such a way, at least one side must be present with the position of legality in order to continue with such a lawsuit. So as to bypass cases, which could easily be judged in reference to areas other than that of the constitution, the Supreme Court came up with a number of rules or guidelines by which judicial reviews according to the Constitution may be enacted.
Cases that concern friendly suits may not seek out the Constitution for judgment. There is no need for such actions, as the non-adversarial nature of such a case may be handled by other means. The Court may also not assume questions of constitutionality prior to a pressing need being observed.
Jumping towards such hasty actions present unnecessary uses of judicial review. In addition, the Court must not extend a rule concerning Constitutional law without the existence of equally distinct facts for which it may be adequately applied. If presented with two ways to approach a case, such as that of the Constitution versus the statutory law, the Court will always be expected to employ the latter as its basis for judgment.
In addition, when statutes are at question, courts must first render the structure of the statute as viable and lawful prior to taking any action toward judicial review in connection to the United States Constitution. This allows for such an action to be avoided until absolutely necessary. A representation of the exercising of such rules is that which is exemplified by the amount of time that passed between the case of Marbury v. Madison and the next Constitutional reviewed case.
It was not for about 50 years until another such case was heard in such accordance. Judicial review allows for the Federal judiciary to exercise its authority in accordance with what is set forth by the Government, and therefore, goes forward with its interpretation according to various jurisdictions on its way to adequate rulings.
