Judicial Review and Constitutional Maintenance

Constitutional restraints on government are tricky and evanescent; government failure (a lapse into anarchy or leviathan) has historically been the norm, and constitutional success an infrequent exception. To shed light on constitutional maintenance, this article examines the concept of constitutional review by studying three competing systems: the American/Marshall system of judicial review; the Commonwealth/Westminster model of parliamentary sovereignty; and the Kelsen compromise between the two. Each system's strengths and weaknesses are assessed, as constitutional framers navigate the treacherous waters between the Scylla of parliamentary tyranny and Charybdis of gouvernement des juges. In the end, neither extreme is perfect, but lessons are drawn from each of the three models.

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