In a broad sense, Judicial Review refers to the examination and, if necessary, invalidation of any governmental action and legislation. In a narrower sense, it refers to the corrective, or nullifying, action on legislation while judicial actions on executive decisions come through writs. In the common law practice this second function belongs to the domain of tort.
Theoretically, Judicial Review springs from two sources: supremacy of the constitution and the power of the Judiciary to interpret law, including constitutional law.
The US constitution gives a clear direction to this effect in Article VI, Section 2:
The constitution, and the laws of the United States which shall be made in pursuance thereof; and all the 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, anything in the constitution or laws of any state to the contrary notwithstanding.
It should be noted that the supremacy of the US Constitution was initially asserted vis ‘a vis the constitutions of the federated states. It should also be noted that judicial review emerged in the Marbury v. Madison case (1803) in course of self-denial of the US Supreme Court rather than an aggressive move against the US congress. The court declared a part of Section 13 of the judiciary act of 1789 void as it extended the original jurisdiction of supreme court beyond what had been sanctioned by the constitution.
Strictly speaking, therefore, judicial review emerged out of the supreme court’s refusal to assume more powers than had been sanctioned by the constitution. It does not mean judicial supremacy, and its opposite is not supremacy of parliament.the opposite of judicial review is eminent domain which, according to the same judge in McCulloch V. Maryland (1819), just allows the government to work in its assigned field. Reiterating that the constitution and the laws made in pursuance thereof are supreme, and cannot be controlled by the states, Marshall wrote: The powers of the government are limited, and its power are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which enables that body to perform the high duties assigned to it in a manner most beneficial to the people but the end be legitimate. Let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consistent with the letter and spirit of the constitution, are constitutional.
The sobre view of judicial review guided Chief Justice Marshall all though even though he worked for the strengthening of the union.
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