Louisiana Law Review Volume: 40 Issue: 1 Dated: (1979) Pages: 67-82
The legitimacy of judicial review and the judge's approach to judicial review are discussed.
The doctrine of judicial review holds that the courts are vested with the authority to determine the legitimacy of the acts of the executive and the legislative branches of government. The State as well as Federal courts are bound to render decisions according to the principles of the Federal Constitution. The executive and legislative branches of government are also obligated to perform their duties with serious attention to constitutional principles. Still, where any actions by the executive or legislative branches are challenged in the courts, the judicial branch holds the ultimate authority in determining what is constitutional. The legitimacy of such judicial review has been established through the supremacy clause of the Constitution, which requires that all laws passed in the United States must conform to the Federal Constitution, a determination which could hardly be objective if made by the same body that enacted the law in question. Further, judicial review also provides a powerful countermajoritarian force, so that the one governmental branch whose personnel are not subject to prevailing political climates or special interests can interpret laws and executive actions according to the Constitution. A judicial review decision that fulfills the doctrine's intent should have the following characteristics: (1) seriousness of purpose in attempting to understand the Constitution, and (2) personal and institutional selflessness. All judicial decisions, however, will be influenced by the times and by the personalities of those making the decisions. The system, recognizing the inevitability of human frailty, provides that future judges may correct the errors of their predecessors. Footnotes are provided.
United States of America
This article is the text of a paper 'Interpretation by the Judge of Written Rules of Law,' delivered the annual meeting of the Association Henri Capitant, Louisiana