JUDICIAL REVIEW

power exerted by the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to ensure that such actions conform to the provisions of the constitution. Actions that do not conform are unconstitutional and, therefore, are null and void. The institution of judicial review is predicated upon the existence of a written constitution that is changeable only by some extraordinary process of legislation or referendum. As a constitutional practice, judicial review is usually considered to have begun with the assertion by John Marshall, chief justice of the United States, in /a>Marbury v. Madison (q.v.) in 1803, of the power of the Supreme Court to invalidate legislation enacted by Congress. There was, in fact, no express warrant for Marshall's assertion of the power of judicial review in the actual text of the Constitution, although there was some precedent for it in the British Privy Council review of colonial legislation; its success rested ultimately on the Supreme Court's own ruling, plus the absence of effective political challenge to it. A number of the constitutions drafted in Europe and Asia after World War II incorporated judicial review in various forms: in France, where the Cour de Cassation, the supreme court, has no power of judicial review, a constitutional committee of mixed judicial-legislative character was established; Germany and Italy provided more directly for special constitutional courts; Japan, India, and Pakistan set up supreme courts exercising judicial review on the general United States and British Commonwealth pattern. Widespread pressures after World War II for the adoption of judicial review stemmed from the feeling, strongly influenced by U.S. constitutional ideas, that a system of constitutional checks and balances is an essential condition of democratic government. Some observers concluded that the concentration of government power in the executive, substantially unchecked by other agencies of government, contributed to the rise of totalitarian regimes in Germany and Japan in the era between World War I and World War II. In the United States there has been a constantly changing emphasis on the role of the Supreme Court in relation to the coordinate arms of government, and also frequent divisions of opinion among the justices themselves as to the proper function of the high court in exercising judicial review. Up until the late 1930s the court was hesitant in allowing Congress to interfere with constitutionally guaranteed property rights and, in the early 1930s, struck down much New Deal legislation. Since that time the court's emphasis has shifted to questioning legislative, executive, and judicial actions of the various states, particularly with regard to their observance of constitutional guarantees of liberty and equal protection of the laws (see due process). In some areas the court has been unanimous, or nearly unanimous, as in its numerous decisions since 1954 striking down school segregation and in voting-rights cases. It has also been nearly unanimous in dealing with intrusions by the executive branch of the federal government on the First Amendment guarantees of free speech, as seen in the 1971 ruling preventing the government from interfering with publication of Defense Department studies on the war in Vietnam. The experience of judicial review in some other countries has shown a tendency to favour economic and property interests, accompanied by a firm insistence that the judges' task is one of interpretation alone. Germany, on the other hand, has adopted the judicial activism of its American model (see Federal Constitutional Court).