Constitutional Review of Legislation

The Power to Strike Down Laws

Judicial review — the power of courts to declare legislation unconstitutional and void — is the final checkpoint in the legislative process. In the United States, this power was established by the Supreme Court itself in Marbury v. Madison (1803), when Chief Justice John Marshall declared that 'a law repugnant to the Constitution is void.' The Constitution does not explicitly grant this power; the Court claimed it through interpretation.

Since then, the Supreme Court has struck down roughly 200 federal laws and over 1,000 state laws. Each invalidation represents a moment when unelected judges overruled the decisions of elected legislators — a tension that makes judicial review one of the most debated features of constitutional democracy.

The European Model: Constitutional Courts

Most European countries adopted a different approach after World War II. Instead of allowing any court to review legislation (as in the US), they created specialized constitutional courts — separate bodies whose sole function is to assess the constitutionality of laws. Germany's Federal Constitutional Court, France's Constitutional Council, and Italy's Constitutional Court all follow this model, inspired by the Austrian jurist Hans Kelsen.

A critical difference: in many European systems, constitutional review can happen before a law takes effect. France's Constitutional Council reviews legislation between parliamentary passage and presidential promulgation. This 'abstract review' prevents unconstitutional laws from ever entering the legal system. The US system, by contrast, requires a concrete case — someone must be harmed by the law before the Court can consider it, sometimes years after passage.

Strong Review vs. Weak Review

Not all judicial review is created equal. In 'strong form' review (US, Germany), courts can strike down legislation permanently. In 'weak form' review (UK, Canada, New Zealand), courts can declare legislation incompatible with rights but cannot invalidate it — the legislature retains the final word.

Canada's Charter of Rights includes a 'notwithstanding clause' (Section 33) that allows Parliament or provincial legislatures to override certain court decisions for renewable five-year periods. The UK's Human Rights Act allows courts to issue 'declarations of incompatibility' but leaves it to Parliament to decide whether and how to fix the law. These weak-form systems attempt to balance rights protection with democratic self-governance — giving courts a voice without giving them the final word.

Worked Example: When the Court Struck Down the Line-Item Veto

Judicial review stays abstract until a court actually voids a duly passed statute. In 1996, Congress passed — and President Clinton signed — the Line Item Veto Act, giving the President power to cancel individual spending items in a bill without vetoing the whole thing.

• The law: It was popular and bipartisan, sold as a tool to curb wasteful 'pork-barrel' spending.
• The challenge: After the President canceled specific items, affected parties (including New York City) sued, arguing the law let the President unilaterally amend statutes Congress had already passed.
• The ruling: In Clinton v. City of New York (1998), the Supreme Court struck the Act down 6-3, holding it violated the Constitution's Presentment Clause — bills must be passed and then signed or vetoed as whole texts.
• The result: A statute enacted by elected majorities was erased by unelected judges enforcing the Constitution's structure.

This is the counter-majoritarian power in action: even a popular, bipartisan law falls if it conflicts with the Constitution. Whether that is a safeguard or an overreach is exactly the debate this lesson explores.