The Invisible Constitution in Comparative Perspective

cannot have it in any other way. If we have a written constitution which is the 

supreme law of the land, then surely it follows that the courts must determine 

what the law is and make sure that it is applied to particular cases. The power 

of the courts to impose their interpretation of the constitution on the legisla-

ture simply follows, so the argument goes, from the fact that the constitution 

is legally supreme to ordinary legislation. But of course this is a non sequitur’ 

(emphasis supplied).

100

Marmor further points out that even if courts are assigned the power to deter-

mine questions of constitutionality, it does not follow that they should have 

the legal power to invalidate a legislative act which is unconstitutional. The 

appropriate remedy could be much less drastic, such as a declaratory judg-

ment, or there could be no remedy at all.

101

 Marmor emphasised: ‘Ultimately, 

the desirability of judicial review is a matter of institutional choice, and a great 

many factors which figure in such a complex consideration are empirical in 

nature’.

102

  99 

Marmor, Supra note 98, 149.

100 

Ibid.

, 149–50.

101 

Ibid.

, 150.

102 

Ibid.

, 154. Marmor addressed two other arguments. As to the claim that the interpretation of 

the constitution, a legal document, is a matter for the courts, the repository of legal expertise, 

Marmor indicated that this claim rests on the problematic assumption that legal reasoning 

informs constitutional decision-making solely, as ‘[most] constitutional decisions are based on 

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The Constitutional Orders of ‘One Country, Two Systems’ 

259

Earlier, examining the United States Constitution, Judge Learned Hand 

observed in his Oliver Wendell Holmes Lecture that nothing in the powers 

granted to the courts in the Constitution included the authority to pass upon 

the validity of the decisions of another ‘department’ of government as to the 

scope of that ‘department’s’ powers. The understanding rather was that the 

three ‘departments’ of the Executive, the Legislative and the Judicial were 

separate and co-equal, without any mutual dependence. To subject the valid-

ity of a particular decision of one of them to review and reversal by another, 

in the words of Judge Hand, ‘makes supreme the “Department” that has the 

last word’.

103

 Judge Hand also highlighted that the defence of judicial review 

of legislation by Alexander Hamilton in the Federalist No. 78 was not based 

upon anything in the constitutional text but rather on the ordinary function of 

courts to construe statutes:

The interpretation of the laws is the proper and peculiar province of the 

courts. A constitution is, in fact, and must be regarded by the judges, as a fun-

damental law. It therefore belongs to them to ascertain its meaning as well as 

the meaning of any particular act proceeding from the legislative body . . . Nor 

does this conclusion by any means suppose a superiority of the judicial to the 

legislative power. It only supposes that the power of the people is superior to 

both; and that where the will of the legislature declared in its statutes stands 

in opposition to that of the people declared by the Constitution, the judges 

ought to be governed by the latter rather than the former.

According to Judge Hand, judicial review of legislation was supportable only 

after examination of the deficiencies and undesirability of the alternatives. The 

power was not ‘a logical deduction from the structure of the Constitution but 

only a practical condition upon its successful operation’. Since the Supreme 

Court’s ‘authority to keep the states, Congress, and the President within their 

moral and political considerations’; see 

ibid.

, 150. As to the claim that entrusting courts with 

judicial review secures the rights and principles entrenched in the constitution for the citizens, 

Marmor called it the argument from consensus, ‘a very tenuous agreement which breaks down 

as soon as a conflict comes to the surface’ about rights; see 

ibid.

, 151–3.

103 

Learned Hand, The Bill of Rights (Cambridge, MA: Harvard University Press, 1958) 4–5. Judge 

Hand also considered the so-called supremacy clause of Article VI of the United States Con-

stitution to be not supportive of the proposition of the supremacy of the judiciary. Rather it 

accorded ‘with the view that, when it was intended to grant courts the power to declare a 

statute invalid because it was in conflict with the Constitution, some express grant was thought 

necessary’.

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260