The Doctrine of Judicial Review
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the statute to the facts of the case and reach a decision. This is because the
English courts, in spite of the claims once made by Lord Coke, do not
have the power of judicial review. On rare occasions they may express an
opinion on whether a particular act of Parliament conforms to the English Constitution, but Parliament is free to ignore it. In keeping with the
principle of legislative supremacy, Parliament decides for itself whether
its acts are constitutional. In fact, Great Britain does not even have a supreme court. The highest court of appeals in the British political system
is actually the House of Lords, which, of course, is also the upper chamber of the legislature.
Under the American political system, a judicial inquiry into the legislature’s intent is merely the first step of the judicial process. Once the
meaning and intent of the statute have been determined, the judge must
then decide whether it conforms to the Constitution. If it is a State law,
he must take yet another step to determine whether the law conforms to
Federal laws and treaties. All of this is necessary because of the Supremacy Clause of Article VI. As noted earlier, this is the most distinctive feature of the American Constitution. It is a key provision which, more than
any other, distinguishes the American Constitution from the English—
and most other constitutions of the world.
In essence, the Supremacy Clause establishes a hierarchy of laws, with
the Constitution itself as the highest law, followed by Federal laws and
treaties, descending finally to State constitutions, State laws, and local ordinances. Article VI declares that, ‘‘This Constitution, and the laws of the
United States which shall be made in pursuance thereof; and all treaties
made, or which shall be made, under the authority of the United States,
shall be the supreme law of the land; and the judges in every State shall
be bound thereby, any thing in the Constitution or laws of any State to
the contrary notwithstanding.’’
It is important to study these words carefully. In the first place, there
is no law higher than the Constitution. Political philosophers and even
some judges have argued on occasion that there is a higher ‘‘natural law’’
governing American affairs, and that judges therefore have a higher duty
not only to follow it, but to impose it if some provision of the Constitution or a law seems to conflict with it. Similar arguments have been made
on behalf of ‘‘natural rights’’ and ‘‘moral values,’’ as we noted earlier, and