We often use the terms judicial and constitutional review as synonyms, but it is not clear to me that it is appropriate to do so. While judicial review falls within the category of constitutional review, constitutional review need not only be the province of the courts.
Theories of judicial review seem to offer some support for this larger category. Those theories typically rest on the idea that in a constitutional system some entity (or entities) must maintain the authority and supremacy of the constitution by judging the constitutionality of legislation, or evaluating the constitutionality of the acts of government officials and agents (and sometimes of non-government entities).
That process of measuring acts and actions against a constitutional template is what guarantees the supremacy of the constitution and determines the assumptions of the constitutional order. But that sort of reivew is not a process that can only be exercised judicially or only be manifest through a strong power to strike down a law after a formal hearing. It might, for example, be implemented through a review of the constitutionality of acts or actions that took place before they occurred, rather than afterwards. Arguably that sort of light, preliminary power of review was in effect during some of the period of parliamentary sovereignty in Great Britain, for example, where constitutional review took place during parliamentary debate, rather than through a process that declared acts unconstitutional after they had been formally implemented.
While the United States is typically thought of as the birthplace of judicial review, the constitutional history of that country suggests there were a variety of forms that constitutional review might have taken, and offers a glimpse at the the various justifications offered on behalf of those different claims for the power of review.
For example, the arguments set out in the Virginia and Kentucky resolutions were essentially claims that in a federal system a power of constitutional review could (and should) rest in the sovereign governments of the states that made up the federation. The precise contours of that (potential) power were not completely spelled out in those resolutions. Both documents assume that the power of review rested in state legislatures (as representatives of the sovereign states), but they are less clear about whether the power of review was a power held by a single state or by the states acting in concert. It was also unclear whether the resolutions were declarations that the state, or states had a direct power of constitutional review, which meant they could declare a federal law unconstitutional, or whether the states simply could join together to ask Congress to reconsider a law on the grounds that it was unconstitutional.
In contrast, Calhoun’s theory of nullification offered a theory of constitutional review that vested a direct power of constitutional review in the people of the individual states, acting through conventions. Calhoun’s theory also rested on a notion of sovereignty, though it sited sovereignty differently. For Calhoun, the people in convention were the ultimate sovereigns because the people in convention had ratified the constitution. Because they were the ultimate sovereigns, they had both the power and the obligation to monitor federal laws and declare acts of Congress unconstitutional.
Thus, Calhoun’s theory was far more a theory of constitutional review resting on a notion of popular sovereignty, than it was an idea of state’s rights. Popular constitutionalism, arguments for jury nullification (particularly during the struggles over the fugitive slave laws), and other expressions of civil society or the public sphere, can be read as variations on that idea that the power of constitutional review should rest in the sovereign people.
But where Calhoun’s theory put that power only in an elected, representative body (the convention of people of a particular state), and arguments for jury nullification claimed that the jurors were representatives of the sovereign people, those who assumed that acts of popular constitutionalism or civil society, such as riots, protests, and petitions, could form the basis of a type of constitutional review assumed the process could be extraconstitutional and informal.
There have also been efforts to rest the power of constitutional review in other institutions. Presidential signing statements, to take one obvious example, can be read as a type of constitutional review that compares to a power exercised by the Federal Constitutional Court of Germany (a type of judicial review that expresses itself by offering a binding interpretation of the law that makes the law constitutional). Likewise, a presidential decision not to enforce a particular law (or to veto a law) may be understood as a form of implicit constitutional review.
Like judicial review, theories that argue that the power of constitutional review can be exercised by the president do not rest on sovereign power. Rather they rest on one of two very different theories. On one hand, they may rest on institutional arguments--the idea that something in a particular branch of government make it uniquely qualified to undertake review. The theory that the power of constitutional review should rest on the judiciary, for example, may be justified on the theory that judges are uniquely qualified to review, interpret and reconcile laws.
Alternatively, these theories may rest on a theory of agency--the idea that the president, for example, represents the interests of the entire nation (or the interests of the sovereign people) and may undertake constitutional review for that reason.
This quick glimpse of the alternative theories of constitutional review that have been floated at various times in U.S. constitutional history suggest the range of possibilities and some of the justifications for constitutional review. But they also raise some other issues about that power, issues that I'l return to in a later post.