Talk:Judicial review

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Contents 1 English Law 2 Panel on Takeovers and Mergers 3 Supreme court 4 Germany 5 The lead 6 US Section 7 Judicial review: More than just constitutional issues 8 More countries, editing 9 Judicial review in England and Wales- Irrationality 10 Judicial review in France 11 Link to de: 12 Pine Grove v. Talcott

[edit] English Law

As far as I know, the highest level of scrutiny applied by the courts is in fact Proportionality. When a case deals with Human rights, Proportionality is the test applied, not Irrationality of any kind (I've never seen reference to "anxious scruitiny"...anyone?). Can anyone else confirm this?

'anxious scrutiny' was a term developed in pre- Human Rights Act cases, whereby the court stated that they would be more alive to claims of irrationality where fundamental rights recognised by the common law were in dispute. Off-hand I think the term itself was coined in the Derbyshire County Council case. It is questionable whether proportionality should be understood as directly supplanting irrationality in cases with an ECHR dimension. Although in practice the two will often collapse into one another (the former being a higher intensity version of the latter), it may be possible, theoretically, to have a decision which is proportionate in effect, but irrational in conception. However, to date proportionality has operated as a species of irrationality and therefore it is wrong to say that in ECHR cases "...proportionality is the test applied, not Irrationality of any kind..." Antisthenes 14:01, 26 November 2006 (UTC)

[edit] Panel on Takeovers and Mergers

I've reverted an edit that replaced an link to the panel to a link to the Competition Commission. The later being a public body, there is no surprise that it is subject to judicial review. The panel was a voluntary body and that was what was so significant about the decision in Datafin. Francis Davey 17:46, 31 March 2006 (UTC)

[edit] Supreme court

"In the first seventy-five years of the Republic, the Supreme Court only struck down two pieces of legislation. Thereafter, laws were invalidated only in bursts, for instance, at certain times in the Progressive Era and during the New Deal. Since 1986, when current Chief Justice William H. Rehnquist joined the court, laws have been declared unconstitutional much more commonly than at any time previous. As of the end of 2004, the Rehnquist court has declared unconstitutional more than three dozen laws."

It's probably true that the Supreme Court didn't stike down many laws after its initial inception. However, it seems very dubious that laws have been struck down circa 1986-2004 with significantly greater frequency than other times. In particular, during the civil rights movements (black's and women's) and the sexual revolution of the 1960's and 1970's, so many laws were struck down. I have heard others point to Justice Warren (rather than Rehinquist) as beginning of a precedence of overturning legislation -- they did not substantiate their claim either. I think the statements are suspect enough to warrant their removal, unless a credible source is supplied. Queerudite 20:58, 5 Feb 2005 (UTC)

[edit] Germany

I modified the Germany secton to use "state" instead of "Land" everywhere; this reflects the most common English usage. I did not translate "Bundesrat" as it is frequently not translated (the institution being one unlike what most if not all English-speaking countries have).

[edit] The lead

The lead has this sentence -- "Judicial review is the power of a court to review a law or an official act of a government employee or agent. For example, the basis are different in other countries because of an unconstitutional act of violating basic principles of justice." "I don't understand it at all. It seems there's been some over editing on this and it needs to be cleaned up."

How about "The power of the courts to declare laws and actions of the local, state, or national government invalid if the courts decide they are unconstitutional."? Omegaorion

Unfortunately that would be an incorrect definition since it appears to focus on "constitutionality" which is not the only ground of review in most common law jurisdictions (certainly outside the united states). Also, judicial review is a process not a power. Whether a court has the power will depend on whether the relevant actions is judiciable in the jurisdiction in question. Francis Davey 18:09, 9 October 2006 (UTC)

[edit] US Section

The section on judicial review in America is obviously biased, and comes across as a primer on why judicial review was thought to be bad. Not NPOV.

All I did was quote the Virginia Constitution which was written in the same year as the Declaration of Indepence, Thomas Jefferson who wrote the Declaration of Independence, Robert Yates who was a member of the Constitutional Convention, and James Madison's notes on the Constitutional Convention. If that section is biased, it's because the Founding Fathers were in some way biased. I let the Founders speak for themselves. I'm not saying it's bad. I'm saying the Founding Fathers thought it was bad, which is why they didn't put it in the Constitution, and in some cases outlawed judicial review, in the case of the Virginia Constitution. Judicial review is illegal in the United States. Anyone who reads the Constitution knows that. Whether you think breaking the law is good or bad is left up to you.

No, whether it's illegal is up to you. Wikipedia is not going to take a position on that question. The sentence flatly asserting the correctness of one side of the dispute is the most obvious flaw in this section, so I'll remove that immediately, but much of the rest violates WP:NPOV and will need substantial changes. JamesMLane 06:55, 2 August 2005 (UTC)

Listen, it is provable that it's unconstitutional. That is not someone's opinion. The Supreme Court was not specifically given that power in the constitution. Everything that talks about judicial review recognizes that. Therefore, under the Tenth Amendment, anything not specifically given to the federal government, is denied to the federal government and reserved for the states. Therefore, judicial review is unconstitutional. And I think I present enough historical evidence to show that it was considered to be part of the constitution, but was thrown out. Whether you think that the Supreme Court should have judicial review, whether you would support a constitution amendment giving them that power, whether you think their breaking the law (because the constitution is the law) is good or bad, that's all left up to you.

Actually, it is not so simple as you seem to state. The 10th Amendment does not state that federal powers must be specifically enumerated by the constitution. It states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The argument for judicial review is that it is tacitly endorsed by the constitution. This is of course an arguable point, but your position, that such things must be specifically stated, relies upon a notion of language that seems to deny any power to contextual and subtextual matters that are generally quite important, and thus comes across as overly simplistic and suspect.

[edit] Judicial review: More than just constitutional issues

I have added some language to make clear that while Judicial Review is often thought of (in the United States, at least) as the power of courts to declare statutes unconstitutional, it is really more than that. In a broad technical legal sense in the United States, all substantive considerations of appeals are examples of Judicial Review -- and most involve interpretations of statutes, etc., not interpretations of the Constitution. Famspear 23:50, 22 December 2005 (UTC)

[edit] More countries, editing

I have added a subsection to the German one, but I think if this article would expand the judicial reviews of all countries in the world it would make a book. I think it would be sensible to generalize this article, and create new articles for national judicial reviews. For instance, the Austrian and German Constitutional Court had inspired dozens of new democracies, thus it may be regarded as a general model. The particular information about Germany, Austria, Bulgaria or Hungary may go into separate articles if anybody wants to write them. --ADaniel 11:49, 25 December 2005 (UTC)

[edit] Judicial review in England and Wales- Irrationality

I have swapped Super-Wednesbury and ordinary-Wednesbury in the 'Scale of intensity of review'. I may well be wrong, I did that because it didn't make any sense to me in the other way.

please correct this section if I'm wrong

[edit] Judicial review in France

"Judicial review in France is performed by the Constitutional Council." According to the article: "Judicial review is the power of a court to review a law or an official act of a government employee or agent for constitutionality or for the violation of basic principles of justice". So IMHO judicial review also refers to legal actions against an administrative decision which, in France, are heard by courts (notably the Conseil d'Etat) which can strike down (almost) every administrative decision which is contrary to the Constitution, or to the law voted by the Parliament. I think judicial review also includes the compliance of an administrative decision to an international treaty (which is nothing but a sort of law): French court, although they are compelled to abide by a law (in the French meaning, i.e the law voted by the Parliament or approved by a referendum) even if this law is constitutional, can assess whether this law abides by an international treaty and, if not, say the law should be ignored (although the law is not formally cancelled). Apokrif 20:26, 23 March 2006 (UTC)

[edit] Link to de:

The article currently links to de:Verfassungsgericht (and conversely), but as Verfassungsgericht means "constitutional court" and not the power of this court, I think en: should rather link to de:Verfassungsbeschwerde (although a Verfassungsbeschwerde is the application for judicial review - ie an action by by a litigant - rather than the judicial review itself - ie the power of the court). Also, in the case of the Verfassungsbeschwerde, the court is interested only in the violation of the Constitution (Verfassung), whereas, according to the en: article, Judicial review sometimes includes the checking of facts. Apokrif 12:13, 31 March 2006 (UTC)

• I've changed the interwiki to de:Verfassungsgerichtsbarkeit, which is what judicial review means in German. See also de:Diskussion:Verfassungsgericht. Sandstein 16:39, 31 March 2006 (UTC)

[edit] Pine Grove v. Talcott

This sentence is being taken out of context. The sentence was referring to the Court declining to decide whether the taking of property was invalid because of its non-private character.

The U.S. Supreme Court has always acknowledged that lack of authority. "It does not belong to courts to interpolate constitutional restrictions. Our duty is to apply the law, not to make it. All power may be abused where no safeguards are provided. The remedy in such cases lies with the people, and not with the judiciary." Pine Grove v. Talcott, 86 U.S. 666 (1873) —The preceding unsigned comment was added by Roadrunner (talk • contribs) 20:13, 25 January 2007 (UTC).

I disagree. The sentence is not being taken out of context. The Court in that case discussed at length the principles of judicial review, so it's very relevant to this article. The Court said:

"[I]t has been argued that the act of the legislature was void. This presents the only question in the case, and it is fundamental. If the foundation fails the entire superstructure reared upon it must fall. It is said the act is in conflict with the constitution of the State. It is an axiom in American jurisprudence that a statute is not to be pronounced void upon this ground, unless the repugnancy to the constitution be clear, and the conclusion that it exists inevitable. Every doubt is to be resolved in support of the enactment. The particular clause of the constitution must be specified and the act admit of no reasonable construction in harmony with its meaning....It does not belong to courts to interpolate constitutional restrictions. Our duty is to apply the law, not to make it. All power may be abused where no safeguards are provided. The remedy in such cases lies with the people, and not with the judiciary."

This is all about judicial review. At least the last four sentences belong back in the article. Those sentences very much support the statement made in the article: "[A] federal court may not strike down any statute absent a violation of some aspect of the Constitution. The U.S. Supreme Court has always acknowledged that lack of authority."Ferrylodge 21:56, 25 January 2007 (UTC)