The Israeli Supreme Court is often criticized for its use of judicial review. The criticism is centered on the contention that Israel’s Basic Law a limited constitution gives no mandate for the Israeli High Court to pass judgement on laws produced by Israel’s democratically elected Knesset.In other words critics of the of the High Court contend that it has mandated itself with the power of judicial review.If we accept this argument does this self-mandating of the power of judicial review have any precedent within the democratic tradition?
If we look at the section of the American Constitution which enumerates the power of the Supreme Court there is no explict power granted by the Founding Fathers for the High Court to overrule Congressional legislation. Article three of the American Constitution indicates what was granted to the High Court in terms of power. It states:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted
If the American Constitution did not explicitly grant power of judicial review of laws, where did its present power to function this way originate from? The power originated from the Supreme Court itself. In the famous case of Marbury vs Madison the Court in effect created it own power of judicial review of legislation. The Court ruled that the Judiciary Act of 1789 a law passed by Congress to be unconstitutional. The precedent was set by the Court itself and not drawn from explicit powers in the Constitution. To quote
Chief Justice John Marshall who was Chief Justice at the time:
“The particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument.”
— John Marshall: Opinion as Chief Justice in Marbury vs. Madison, 1802
To emphasize again there is nothing within the explicit American Constitution granting power given to the United Supreme Court that would allow for judicial review. The power was self-mandated much in the way that judicial review in Israel had been mandated by its Supreme Court. Critics of the process of judicial review in Israel should be reminded that it has precedent in what is considered to be a bulwark of a judicial democracy;the United States court system. Perhaps the democratic aspect of this is what the critics of the Israeli court system are really afraid of.