Evolution of the Judiciary: The development of the judicial department may be traced along several related, yet fairly distinct, channels.
1. As to its organization:
The administration of justice, which is universally regarded today as a state function, was originally a private matter, the state having no machinery for its administration. In the primitive state, disputes and breaches of custom were settled by compromise or by individual or family retaliation and vengeance. In case of private offenses a blood feud resulted, later taking the milder form of a money payment for injuries inflicted. For more serious offenses, or “bootless” crimes, for which money could not atone the offender was driven out from the community and made an outlaw.
The state, entering as the arbiter of custom, later became the creator of law, the adjudicator of disputes, and the prosecutor and punish-er of offenders. The political authority compelled payment or private Injuries, and viewed serious offenses involving violence or disorder as violations of the king’s peace or offenses against the state whose duty it. was to maintain order and to punish crime.
As loyal power increased, the judicial functions exercised by the community, by the feudal lords, and by the church were gradually consolidated and the administration of justice was made exclusively a function of the state. At first the judicial function was not clearly differentiated from other political functions and was exercised by the executive and his advisers, who, in addition to creating and administering law, decided disputes and punished offenders. As political business increased and property rights became more complex, special officials, expert in the law, branched off from the other organs of administration and formed a distinct department. This process, however, was gradual, and historic remnants of judicial power, such as the power to pardon, are still exercised by the executive.
2. As to the status of individuals before the law :
In former times there was not uniform law for all neither were all equal before the law. Slavery was universal, and slaves had few legal rights. Women were legally at the mercy of their husbands and children, of their fathers. Society was often divided into castes, or classes, with varying legal rights.
Even in the Middle Ages the clergy were a privileged class, with their own law and courts, and the nobility possessed special rights and privileges. The growth of democracy has created the present legal theory that all individuals are equal before the law, and class legislation or privileged treatment in the courts is frowned upon.
The delay or evasion of punishment in the case of wealthy offenders and the favorable legislation secured sometimes by questionable means are survivals of the older order. Judicial procedure should never be so costly as to deprive the poor citizen of access to the courts and the improvement of legal methods, especially on the criminal side, should be the constant care of the state.
3. As to procedure and punishment:
Methods of n in and forms of punishment also have undergone considerable transformation. The formality and complications of early judicial process have been considerably simplified, though many needless technicalities Still survive. The cruelty and injustice Of trial by torture or of superstitious appeals to divine power through oaths, ordeals, or personal combat have been replaced by more reasonable process. Similarly, the desire for revenge or retaliation, resulting often in punishment of undue severity and falling on the innocent as well as the guilty, has been replaced by the ideas of prevention of crime and protection of society and of the reformation of the criminal.
Modern penal systems still show survivals of former methods. Capital punishment is a form of retaliation, and lynch law is a reversion to the most primitive form of vengeance fines whose amounts are adjusted to the degree of the offense, suggest the medieval wergild and imprisonment, the usual penalty contains the element of punishment as well as that of prevention.
Modern juvenile courts and reform schools, together with improved methods of prison administration and greater knowledge of the causes and conditions of crime, may be expected to diminish the proportion of offenders,with resultant social benefit. On the other hand, the growing complexity of society and the multiplication of legal prohibitions tend to increase the number of offenders.
Functions of the Judiciary:
The judicial department performs the important function of applying to specific cases the principles of custom, statutes, and written constitutions. It determines what the facts are many given case, what the law is that applies to the case, and how the legal rights of the parties concerned are affected. In this process it frequently happens that cases arise not entirely covered by existing law, or that discretionary powers must be exercised by judges in determining the exact meaning of the law, in expanding its details or in applying general principles of justice and morality.
The judicial department thus becomes a creator of law, at least for the particular case concerned. In England and the United States, where judicial decisions are quoted as precedents and usually followed in similar cases, such “judge-made law” forms considerable part of the entire system of jurisprudence Constitutions and laws are always rigid flexibility must be given to them by judges.
One school of jurists maintains that, when judges give decisions on cases not covered by definite existing laws, they are not creating law but discovering it, that is, that they are finding the existing custom in regard to the question at issue and officially stamping it with their approval.
This point of view is held by those who consider lawmaking by the courts a usurpation of legislative functions. Most modern writers, however, admit that judges, by means of the precedents they establish, actually make law. In this way the Roman judges built up a vast fabric of jurisprudence based upon the few principles of the Twelve Tables, and English and American judges have created the extensive body of common law.
Even in Continental countries, where detailed codes exist which are presumed to contain the entire law and where judicial precedents are not binding in future cases, the quantity of judge-made law, especially of administrative law, is considerable.
Under the English and American system of law the principle of stare decisis, that is, that a decision once given shall be binding in future cases, is generally observed, even though it may work certain hardships. The advantage of certainty in the law is believed to outweigh occasional injustice. In Continental countries the theory obtains that. law should develop along lines of reason and abstract justice, and judges feel no obligation to follow outworn precedents.
While the main function of the judicial department consists in the adjudication of civil controversies between individuals or between individuals and the state, and in the trial of criminal cases, the courts also perform certain functions not strictly judicial in nature.
They appoint certain officials, grant licenses, administer estates of deceased persons, appoint guardians, trustees, and receivers for bankrupt corporations. They issue injunctions to prevent the commission of wrongs and issue writs of various kinds, such as those of habeas corpus to prevent Wrongful imprisonment and of mandamus to compel public officials to perform their legal duties.
In continental countries the courts not only decide cases brought before them but give declaratory judgments, stating what the law requires, when interested parties request such Opinions. In this way the cost and delay of much litigation may be avoided. Similarly, in many states, courts give advisory opinions on questions of law when requested by the legislative or executive departments.
Neither declaratory judgments nor advisory opinions are given in the Federal courts of the United States, but these devices are in use in some of the States of the Union.
Organization of the Judiciary:
While the executive department is generally organized under a single head, and the legislative department consists usually of two fairly numerous assemblies, the judicial department consists of a series of magistrates or judges, one above the other, with a supreme court at the head. In British countries and in the United States the courts, except for the higher tribunals of appeal, are usually presided over by a single judge.
In Continental states opinion favors a plurality of judges, even in the lower courts, as a safe guard against arbitrary action or outside pressure. Present judicial systems are complex, though showing general resemblances. The ordinary courts decide legal controversies between individuals and try criminal cases.
These courts are arranged in a series, with the lowest disposing of petty cases, higher courts having jurisdiction over more important cases, and a final court having jurisdiction over special cases and hearing appeals from the lower courts. In some states the same courts try both civil and criminal cases in others separate courts are used for each purpose.
The jury system is used extensively for the determination of facts in criminal cases, and to a certain extent is used for civil cases in some countries. Many states, however, leave the decision in civil cases to judges alone, believing that they are more competent to deal with complicated legal questions.
In addition to the ordinary courts, there are many special courts created for particular purposes. These include military courts, commercial and industrial courts, courts of claims, labor arbitration courts, courts of impeachment, and ecclesiastical courts, where church and state are not separated.
In Continental states administrative courts form a separate branch of the department. For convenience of administration the jurisdiction of the lower courts is limited to certain areas, that of the courts of first instance coinciding with local divisions and that of the higher courts covering wider areas. According to British And American practice, judges frequently go on circuit, holding mutt in different places for the convenience of the parties concerned. In continental Europe the courts generally sit in the game place, and litigants must travel to the judicial centers.
The judicial system as a whole, considered as a subdivision of ,administration, includes a numerous *body of officials who aid in bringing cases before the courts, in administering judicial procedure, and in carrying out judicial decisions. Such officials include constables and sheriffs, clerks and bailiffs, public prosecutors, grand juries, and the like.
In states having the federal form of government there are usually two distinct systems of courts, one administering a uniform national law over the entire country, the other administering the separate laws of the federal subdivisions within their respective areas.
The German Republic, if it be considered a federal State, was an exception to this principle, as it provided for a single, uniform system of courts, organized under national law, administering a uniform code of civil and criminal law and following a uniform procedure. With the exception of the supreme court (Reichsgericht), however, these courts were regarded as the courts of the separate units of the federation, rather than as national courts.
In the United States, in addition to the federal courts, of which there are three series, district courts, circuit courts of appeals, and the supreme court,each commonwealth determines the organization of its own judicial system and frames its own law and legal procedure. In spite of this fact, there is general uniformity in law and procedure in the various commonwealths, and the constitution of the United States requires that the courts of each state shall give full faith and credit to the records and judicial proceedings of the other States.
The English common law basis, on which American jurisprudence rests, and the tendency of courts in the various commonwealths to follow decisions given in other commonwealths create a fairly uniform system of law, though certain variations in the cases of marriage and divorce, regulation of child labor, and the chartering of corporations have proved troublesome.
The authority of the Federal and state courts in the United States is divided in accordance with the following principles, which determine the jurisdiction of the Federal courts over two classes of cases:
1. The nature of the parties concerned.
This includes case in which the commonwealth courts would not properly ham jurisdiction, such as cases concerning foreign diplomatic agents, disputes between two commonwealths, or cases in which the United States is a party, and cases in which commonwealth court could not have entire jurisdiction, such as suits between citizens of different commonwealths.
2. The nature of the question concerned.
This includes cases of admiralty or maritime jurisdiction, and all cases arising Under the constitution, laws, and treaties of the United States, This enables the national government to maintain the same interpretation of the constitution in all parts of the United States and to enforce a uniform system of Federal law.
Selection and Tenure of Judges.
Since judges, serving is points of contact between the state and its individual members, perform functions of great Importance, certain general principles should be observed in their selection and tenure. Judges should be thoroughly trained in the law. Judicial decisions demand a developed judgment and a vast amount of legal knowledge. Competence of judges is largely secured by selecting judges from the ranks of skilled lawyers and by a healthy public opinion which respects the dignity of the judicial office and disapproves of incompetency in its incumbents. The judges should be impartial.
Neither personal nor political interests should interfere with the absolute integrity of justice. The judiciary should be independent of the other departments of government judges should be selected by a method which minimizes political considerations and should be guaranteed permanent tenure, adequate salary, and promotion on the basis of ability and legal eminence only.
Various methods are used in selecting judges in modern states. Election by the legislature was general in the early state governments in the United States, owing to the fear of the executive and to distrust of popular election. This method survives in several American commonwealths and is used in selecting federal judges in Switzerland.
It is not generally favored because it tends to destroy the independence of the judiciary and to result in political intrigue and in apportionment of judges according to local interests. Popular election of judges was favored in the first half of the nineteenth century as a result of the extreme theory of popular sovereignty that came in with the French Revolution.
This method was tried for a time in France with disappointing results, and was adopted and is still followed in many states of the American Federal Union. It used in Switzerland for the selection of judges in the lowest courts and is favored to some extent in states, such as Russia, that have adopted communist theories.
The chief defect of this method is that it tends to secure weak and incompetent judges, since the mass of voters are not sufficiently discriminating to select the best men, and since those best qualified are usually not willing to engage in the methods necessary to success in a political campaign.
Moreover, a judge whose tenure depends upon , reelection is likely to be influenced unduly by public opinion and to give decisions that will be popular rather than legally sound. When judges must also be politicians, the connection of the bench with the political machine or sometimes even with the underworld may result, with little likelihood of courageous and impartial justice.
The method of choosing judges in most states is that of appointment by the executive, that is, by the executive head in states having the presidential form of government and by the minister of justice in states having the cabinet form. This method is followed in England and in the Federal government of the United States.
In many of the countries of continental Europe the lower judges are chosen by competitive examination and appointment to the higher posts is made by the executive on the basis of seniority or proved ability he system usually results in a learned and independent body of judges characterized by a high sense of professional honor but often too narrowly legal in their outlook.
A method that is favored by many political thinkers is appointment by the executive from a list of nominations made by the judges of the court in which a vacancy occurs or by a body of higher judges, who are themselves independent and likely to be familiar with the qualifications of the men they recommend. Appointment by the executive is favored on the ground that the executive is more competent to select able men than the legislature or the voters and that judges so chosen are more likely to be independent of political or sectional considerations or of popular influence. On the other hand, if the executive is free to appoint judges as he chooses, personal favoritism or political considerations may determine the selection.
Permanent tenure for judges during good behavior is the practice in most countries. Switzerland and most of the states of the American Union are exceptions. The idea of short terms for judges was adopted in the American commonwealths in the early nineteenth century, as a result of the same democratic theory that made many of the formerly appointive judges elective.
In practice, many American states reelect or reappoint their judges at the end of their terms, so that the tenure is fairly permanent. When judicial tenure is permanent, some method of removing incompetent, corrupt, or incapacitated judges must he provided. In continental Europe judges may generally be removed only after a legal trial before the court to which they belong or before a superior court.
In Great Britain judges are removed by the Crown upon “address,” or recommendation of both houses of Parliament. In the United States the usual method of removal is by impeachment, in which the lower house of the legislature prefers the charges and the upper house conducts the trial.
The requirement of an unusual majority to convict is a partial safeguard against the use of the impeaching power for political purposes. In some of the American commonwealths. judges may be removed by the legislature or by the governor on the recommendation of the legislature. Several of the American commonwealths permit recall of judges by popular election but this method of removal is generally condemned as likely to interfere with the independence of the judiciary and to destroy the respect in which the courts should he held.
Relation of Judiciary to Executive.
The relation of the Judiciary to the executive may be viewed from the standpoint, first of the judicial powers of the executive and its control over the judiciary, second, of the administrative powers of the judiciary and its control over the executive. The former is in most respects a historic survival of the original unlimited powers of the executive. The latter, concerning which Continental practice differs from that in England and America, depends upon the prevailing theory as to the proper separation of powers and the relation of the government to the private individual.
1. Executive control over the judiciary:
The executive exercises a certain control over the judiciary because, in last resort, judicial decisions are effective only if supported by the force of the state, and this force is at the command of the executive. Besides, the executive is frequently given large powers of appointment to judicial offices and while the permanent tenure that follows appointment may prevent continued control, the political complexion of the judiciary and the nature of their decisions will be affected by the type of men selected by the executive.
A good example of this is the appointment of John Marshall to the United States Supreme Court, as a result of which numerous decisions favoring a nationalist theory of government were given long after the party which held different views had secured control of the other departments. In some countries the executive may assign judges to their stations and may punish judges who are not sufficiently subservient by placing them in the less desirable places.
Of some importance are the judicial powers that are still in exercised directly by the executive department. These survivals of the original judicial powers of the state are concerned mainly with the maintenance of discipline in the army, navy, arid civil service, and in the application and enforcement of administrative law.
Laws concerning treason, courts martial for military or naval offenders and military law in times of riot or rebellion are examples. Modem states, however create constitutional and statutory safeguards against the arbitrary use of the powers by the executive.
The right of courts to uphold their dignity by punishing offenders for contempt of court is a historical survival of the time when a court was a mere division of administration, and disregard of its commands was an offense again the of the king. The pardoning power of modern executives is a still more direct survival of their original judicial functions.
2. judicial control over the executive:
The most important judicial powers of the executive are found in the states of continental Europe, where a separate system of law and courts, controlled by the executive department, exists for the trial of officers of administration charged with illegal acts in the performance of their official duties.
These administrative courts are characteristic of the different attitude that the government assumes to the individual in these states, as contrasted with that prevailing in Great Britain and the United States. In the latter the officials of government are responsible to the ordinary courts for their official actions and official are frequently held personally responsible for acts which, in the opinion of the courts, exceed their lawful authority.
The legal immunity of the Crown in England and the special procedure of impeachment for the president and other high officials in the United States are, of course, exceptions. Even members of the army and navy are responsible for the performance of illegal acts and, in general, the military administration is subordinated to the civil.
In this way Anglosazon states believe, individual liberty is guaranteed against executive encroachment, and the formation of a specially privileged bureaucracy is prevented. Naturally this gives large powers to the judicial department, which not only punishes offending officials but, by the issue of writs, may compel officials to perform or refrain from performing certain acts.
On the other hand, the states of Europe, emphasizing efficient government, believe that administrative official in the discretionary performance of their functions, may have occasion to violate the laws that apply to ordinary citizens. In such cases they are called to account before special administrative courts composed mainly of superior executive officials.
These apply a special form of law and procedure, basing their decisions mainly on administrative ordinances, and taking into consideration political expediency and, general considerations of justice. Under this system a series of administrative courts is created, parallel with the ordinary courts, the former applying administrative law to public official, the latter applying civil and criminal law to private individuals.
Separate administrative courts originated in France at the time of the Revolution. There the national administration was closely centralized, while the local judicial bodies were not united into a national system. There was strong opposition to the control which the courts had exercised over the administrative authorities under the old regime, and a feeling that, if the courts were allowed to decide controversies between the official of the state and private citizens, judicial interference with the acts of the government would result and the efficiency of the administration would be destroyed.
Accordingly, Montesquieu’s theory of separation of powers was interpreted to mean that the judiciary should not interfere with the executive, rather than, as in the United States, that legislature and executive should be kept independent. At first the administration itself was allowed to decide administrative controversies, but later a separate series of administrative tribunals was set up to perform this function.
Most of the European states have adopted similar systems. Even in the United States traces of administrative jurisdiction are found in the semi judicial bodies acting under some of the administrative departments and in the commissions appointed for the regulation of certain public or quasi-public interests.
Both the English-American system of subordinating public officials to the ordinary courts and the Continental system of separate administrative courts have certain advantages and disadvantages. While the former may offer better protection to private individuals against governmental aggression, it must be admitted that the application of administrative law by the ordinary courts results In a technical procedure and in the formation of a number of special remedies.
Separate administrative law and com make possible a simpler law and procedure for public officials in their administrative acts, and allow considerable elasticity in applying principles of expediency and justice. At the same time there is the constant probability of conflict between the two series of courts, or between the administration and the ordinary courts. Sometimes both kinds of courts claim jurisdiction sometime both refuse to take jurisdiction.
The fact that some legal method of settling these conflicts is provided does not obviate the delay and expense of litigation required to bring the case before the court that has final power of decision. There is always the danger that justice may not be secured under administrative courts if governmental policy demands a certain decision. Individual rights may be sacrificed when the administration is bath the offender and the judge of the offense, and the principle of separate administrative law and courts may be used as a means of strengthening the executive power of the state.
Fear of this consequence has led to a widespread prejudice against administrative courts in England and the United States, but experience has shown that it is largely unfounded. While the administrative courts were originally established to protect the officials of administration from interference at the hands of the judicial authorities, the administrative courts have become the protector of the private individual against arbitrary and illegal acts of the agents of government, and the means by which the state allows suits to be brought against it for acts that injure its citizens.
In England and the United States the doctrine prevails that the state cannot be sued except where this right is specially conferred by statute and even where the right exists, it requires special procedure and is subject to restrictions that make effective remedy difficult.
The private citizen who is injured by the wrongful act of an official of government acting as the agent of the state may bring a personal damage suit against the official under the ordinary law and in the ordinary court but in many cases this remedy is ineffective, since the official may be unable to pay the damages that are awarded.
Under the system of administrative courts, the citizen who is injured by the agents of the state may sue the state in the administrative courts, with simple procedure and at small cost, and obtain pecuniary remedy. Modern opinion tends to favor the principle that the state should be held legally liable for the wrongful acts of its public official, and to recognize the merits of the system of administrative jurisdiction.
Relation of Judiciary to Legislature:
In addition to the facts that much of the law which courts interpret and apply is created by legislatures and that legislative appropriations are necessary for the maintenance and operation of the judicial department, legislatures exercise a further control over the ordinary judiciary.
1. Legislative control over the judiciary:
Except for a few high courts which are established by constitutional provisions, the judicial departments of modern states are created by legislative statute and may be modified or abolished by legislative enactment.
In most states certain judicial powers have been retained by the upper houses of the legislatures. The reasons for this are historical, and considerable difference exists as to the parties and subjects over which they have jurisdiction and the nature of the penalties that they may impose.
In Great Britain the House of Lords is nominally the highest court of appeals. In practice its judicial functions are exercised by the Lord Chancellor, who may be a commoner, and by four jurists appointed by the Crown to serve as Lords of Appeals. Impeachment, though it was an important means of controlling the great official of government in the development of the English constitutional system, is no longer needed, as the ministry is responsible to the people through the House of Commons.
The framers of the United States constitution, influenced by the theory of the separation of departments, limited the judicial powers of the Senate to the trial of high governmental officials, including Federal judges, and restricted the penalty to removal from office and disqualification for future official holding. This power of impeachment has been sparingly used, and the independence of the judiciary has not been threatened.
In France, under the new Constitution of 1946, ministers may be impeached for crimes and misdemeanors by the High Court of Justice on indictment by a majority vote in the National Assembly.
2. judicial control over legislation:
The most important form at judicial control over the legislature is that exercised by the courts in declaring statutes void because unconstitutional. This principle has reached its highest development in the United States. In Great Britain the enactments of minor legislative bodies may be declared illegal by the courts, and the Judicial Committee of the Privy Council may declare statutes of colonial legislatures unconstitutional but the supremacy of Parliament is the key stone of the constitution, and no court has ever claimed the right to declare an act of Parliament null and void because of its unconstitutionality.
On the continent of Europe the practice of judicial review of legislation was for a long time unknown, but has made some headway in recent years. In the German Republic the supreme court might set aside state laws that were incompatible with national laws, and it asserted the right to pass on the question of the constitutionality of national laws. In Austria the supreme Constitutional Court, on application of the ministry, decided upon the constitutionality of federal laws.
The constitution of Czechoslovakia provided that laws which conflicted with the constitution were invalid and, like that of Austria, referred the question to a special constitutional court. In Rumania by constitutional provision, and in Norway and Greece by judicial precedent, the courts pass upon the constitutionality of laws.
In France the acts of parliament are removed from judicial control, but the Council of State may annul ordinances that are in excess of the legal powers of the body issuing them. Since a large part of French legislation consists of administrative ordinances, the amount of judicial control is considerable.
A growing number of French jurists favor the adoption of the principle that courts may declare laws unconstitutional, and it is likely that the principle will find further acceptance in European countries. The doctrine of judicial control is applied to some degree in most of the Latin American states reaching its highest development in Brazil.
In states with the federal form of government, necessitating 2m adjustment of the respective powers of the central government and of its main subdivisions, the power of the courts to prevent the latter from exceeding their constitutional powers has been generally recognized.
In Switzerland the federal supreme court may set aside acts of the legislatures of the cantons that conflict with the federal constitution. Similarly, in the Dominion of Canada and in Australia acts of the provincial parliaments that conflict with national law may be declared invalid by the courts.
To maintain the equilibrium of a federal system, and to settle issues that arise out of conflicts of authority in a dual system of government, some arbiter is necessary, and modem opinion is agreed on the principle that the judiciary is best adapted to perform this necessary and difficult task.
However, in most federations the courts seldom inquire into the constitutionality of laws passed by the national legislature, the constitution of Switzerland specifically providing that every statute of the federal assembly must be regarded as valid.
In the United States, not only do the supreme courts of the commonwealths disallow acts of the commonwealth legislatures if contrary to commonwealth constitutions, but the supreme court of the United States disallows commonwealth statutes if opposed to the Federal constitution or to treaties or statutes made in pursuance thereof, and even sets aside acts of Congress if contrary to the interpretation of the Federal constitution that is held by the court.
This large judicial power is not distinctly set forth in the constitution of the United States or in those of its commonwealths, but has been gradually developed by the courts as desirable and necessary for the maintenance of a federal government with coordinate departments and of a written constitution.
While it was suggested in some early decisions of English courts that acts of Parliament might be so unjust that the courts would refuse to enforce them, this suggestion never became an established rule in English jurisprudence. In the American colonies, however, appeal was frequently taken against actions of the colonial legislatures to the king in council, and such actions were often declared invalid on the ground that they exceeded the powers granted by the colonial charters.
Thus grew up in America the idea of written constitutions, of delegated powers, and of judicial review of legislative acts. Even before the adoption of the Federal constitution the courts in several of the American states declared acts of the legislatures unconstitutional the most important examples occurring in New Jersey in 1780 and in Rhode Island in 1786.
The history of the Federal Convention shows that it was intended to give the Federal courts power to nullify commonwealth statutes if contrary to the Federal constitution, but opinion was divided concerning the extension of this power to acts of Congress. Many statesmen believed that such authority was an inherent part of the judicial power.
The ablest defender of this point of view was Alexander Hamilton a who argued that the constitution was the fundamental law, that the judiciary must determine its meaning, that the powers of Congress were constitutionally delegated powers, the extent of which Congress itself could not determine, and that legislative acts which were in conflict with the constitution must be declared void by the judiciary, since they were obliged to give their decisions in accordance with the fundamental law.
In 1803, in the case of Marbury v. Madison, the supreme court declared an act of Congress unconstitutional. Chief Justice Marshall in giving his decision, followed closely the reasoning of Hamilton, arguing the supremacy of the constitution over statute law, and the right of the judiciary to interpret and enforce the will of the people as expressed in the constitution against the limited and delegated powers of the legislature.
In 1810, in the case of Fletcher v. Peck, the supreme court for the first time distinctly annulled a commonwealth statute. Similar decisions disallowing commonwealth statutes were frequently made, but the power to declare laws of Congress unconstitutional was not again exercised until 1851.
The Dred Scott case (1857) was a broad application of the power of judicial control, and since the Civil War judicial revision of Federal legislation has rapidly extended. More than fifty acts of Congress and more than three hundred state statutes have been set aside by the supreme court. This principle of judicial revision worked out of the Federal court, was adopted in the commonwealths with reference to their constitution and laws and is now an accepted part of American jurisprudence.
It leads to strong respect for constitutions and prevents hasty change and radical legislation at the same time, because of the difficulty of constitutional amendment, it provides a certain elasticity in interpreting and extending constitutions to meet new conditions. This is especially true in the Federal government of the United States, where decisions of the supreme court have been perhaps the most important method of constitutional expansion.
It must be remembered, however, that the courts, even in the United States, may act only when the case comes under the jurisdiction that is given to them by the constitution and the laws. With many broad questions of constitutional law affecting executive and legislature the courts may not deal, and they may act only when the rights of legal persons are involved and when cases are properly brought before them. Even then the decision, while it is conclusive as to the parties before the court and serves as a precedent for future cases, does not repeal the statute concerned.
It declares that in the particular case before it the statute will not be applied because it never was a valid statute. American respect for the judiciary, attributable in part to the facts that the government has been created and controlled and public opinion determined, to a large extent, by lawyers, causes the other departments of government to yield deference to such decisions, and the objectionable statutes are repealed or become obsolete through non enforcement.
The advantages of the principle of judicial control over legislation have been pointed out by many writers. In the federal system of government, where the constitution marks out a sphere of authority for the central government and another for that of the member states or provinces, it is necessary that the courts should compel each to keep within its legal sphere and should settle conflicts of authority otherwise the existence of the federal system would be impossible.
Where a written constitution exists, the power of the courts to compel the legislature to keep within its constitutional powers maintains the distinction be tween constitutional and statute law. If the legislature deter mines the scope of its own power, and the courts have no right to set aside such of its acts as violate constitutional limitations the constitutions become a mere scrap of paper of no binding power.
Where a written constitution contains a bill of right guaranteeing a domain of civil liberty to the individual against governmental interference, the right of the courts tn set aside legislation that encroaches upon this field is of especial value.
Nevertheless, the principle of judicial review has been seriously criticized. It has been attacked on the ground that it violate the principle of separation of powers, giving to the courts a veto over legislation that makes the court the final lawmaking body.
This imposes political and legislative duties upon the courts, in which they are compelled to decide questions of policy, rather than legal controversies. Many believe that the courts, because of the conservative and narrow nature of legal training, are not properly fitted to decide broad questions of public policy, that they tend to be more interested in property rights than in human rights, and that they often apply outgrown principles to rapidly changing economic and social needs.
Those who desire change and reform have more confidence in the legislature than in a judicial aristocracy, and accuse it of impeding progress and thwarting popular demands. There has even been a movement toward the recall of judicial decisions that is, the reference of decisions declaring statutes unconstitutional to popular vote, which may uphold the law in spite of the court’s opinion to the contrary.
This proposal has been generally condemned as destructive of the independence of the judiciary. While judges in applying constitutional principles to new legislation may prevent as rapid change as is desired by some, they are in time influenced by changing public opinion and by new social standards, and modify their interpretation of constitutions and laws accordingly.