Introduction

The proposition to establish a separate and distinct judicial wing of state equipped with power of judicial review, accountable for upholding the constitution as the supreme law of the land, is a unique American contribution to political theory. Indeed, it was a revolutionary idea in the late eighteenth century, especially when contrasted with the notion of parliamentary supremacy so familiar in Great Britain. Distant from a threat to popular will, a separate judicial wing was premeditated to pledge democratic freedoms by averting the concentration of power in government. It was vital in the system of separation of powers and checks and balances to ensure a delicate steadiness between the separated powers-holders. Interestingly, the term ‘judicial review’, like the word ‘democracy’, is conspicuously absent from the US Constitution. However, that the founders were familiar with the concept cannot be doubted. By the time American Constitution was drafted, eight of the thirteen states had incorporated judicial review into their own Constitutions, and more than half of the delegates to the Constitutional Convention supported it. Alexander Hamilton explained:

He argued for judicial review by an independent judiciary as a necessary means to void all governmental actions contrary to the Constitution. He maintained that limits placed on the power of the federal legislative and executive branches in order to protect the rights of individuals ‘can be preserved in practice no other way that through … courts of justice, whose duty it must be to declare all acts contrary to … the Constitution void’. Without this power of judicial review, Hamilton avowed, ‘all the reservations of particular rights or privileges would amount to nothing’. He concluded: