We now come to the other Part, Part B, relating to fundamental rights strictly so called, that is to say, rights which are meant to be enforced by legal action. Here we enter upon the controversial ground:
There are very few countries which have fully adopted the system of judicial review enabling courts to act in that capacity in the matter of the fundamental rights of the individual guaranteed by the constitution. In the United States, by long-established practicee—though not in pursuance of any express provision of the Constitution—the Supreme Court has exercised that power since its decision in the historic case of Marbury v. Madison.7 This is also the position, by virtue of an express constitutional provision, in Brazil,8 Venezuela,9 and some other Latin-American countries, in Czechoslovakia,10 Rumania,11 and the Irish Free State.12 In a number of countries—such as Australia, Canada, and Germany (in the Constitution of 1919)13—judicial review is limited largely to questions relating to the respective legislative competence of the Federation and of the member States. On the other hand, in many States the constitution specifically excludes the interpretation of laws—and a fortiori any declaration of their invalidity—from the purview of the judiciary. Judicial review of legislation is contrary to the constitutional doctrine of France and, above all, of Great Britain, where the supremacy of Parliament is absolute. Although the Constitution of Soviet Russia of 1923 gave (in Article VII, sec. 43) the Supreme Court of the Union the power to render decisions, at the request of the Central Executive Committee of the Union, on the constitutionality of any regulations made by the Republics of the Union, no such powers have been conferred upon it by the Constitution of 1936.The doctrine of judicial review has been defended with fervent approval by great lawyers in the United States and elsewhere. Daniel Webster and Francis Lieber praised it as a bulwark of liberty. Lord Bryce was of the view that “there is no part of the American system which reflects more credit on its authors or has worked better in practice.”15 Dicey was a strong believer in the doctrine of the supremacy of Parliament in England. But he was emphatic that it was “the glory of the founders of the United States”16—in fact the doctrine of judicial review was adopted a quarter of a century after the foundation of the Republic—to have established a system of protection of the Constitution essential to a federal system(actually, the exercise of the power of judicial review by the Supreme Court has borne little relation to the fact of the federal structure of the United States). Tocqueville praised it as most favourable to liberty and to public order. After one hundred and forty years of operation it has the unqualified support of a large—perhaps predominant—section of American legal opinion as a bulwark of liberty of the people against the rashness and the tyranny of short-lived legislative majorities.On the other hand, the doctrine of judicial review has found from its very inception violent opponents and detractors in the country of its origin. Jefferson and Madison denounced it. Great teachers of constitutional law, such as J. B. Thayer, have drawn attention to the dangers of attempting to find in the Supreme Court—instead of in the lessons of experience—a safeguard against the mistakes of the representatives of the people.18 That criticism has grown in the last fifty years to the point of bitter denunciation as the result of the exercise of the power of judicial review in a manner which, in the view of many, has made the Supreme Court a defender of vested rights and social statics.19 Some French jurists, who were attempting to find a remedy for the absence of an effective guarantee of fundamental rights in their own constitution have come to regard the experience of judicial review in the United States as a sufficient deterrent against introducing judicial review in France.20 In countries other than the United States, in which judicial review of legislation is recognized, it has been exercised only in rare cases for the protection of the rights of the individual. This being so, there is no justification for urging the general adoption of the principle of judicial review as part of the machinery of enforcement of the International Bill of the Rights of Man.