Jonah Patel
Judicial review, the power of the courts to examine the actions of the government and determine whether they are consistent with the constitution, has existed in some form in the US since before the US Constitution was written. The historical record suggests that the framers of the Constitution were aware of judicial review, and some favoured granting courts that power. The concept of judicial review was established at the time of the Founding, with the Privy Council employing a limited form of judicial review to review colonial legislation and its validity under the colonial charters. Early Supreme Court Justices also seem to have assumed the existence of judicial review, with the first Supreme Court case to find an act of Congress unconstitutional taking place in 1794.
| Characteristics | Values |
|---|---|
| Judicial review before the US Constitution | The concept of judicial review was already established at the time of the US Constitution's framing. |
| Judicial review in US Constitution | The US Constitution does not expressly grant federal courts the power to declare government actions unconstitutional. |
| Judicial review in practice | Judicial review is now one of the distinctive features of US constitutional law. |
| Judicial review in state courts | State courts have the power to review state laws or actions based on their state constitutions. |
| Judicial review limitations | Judicial review can only be conducted on a law that has been brought before the court through a lawsuit. |
| Judicial review supporters | John Marshall, James Madison, Alexander Hamilton, and several delegates to the Constitutional Convention. |
| Judicial review opponents | Elbridge Gerry, Luther Martin, and Charles Pinckney. |
| Landmark cases | Marbury v. Madison (1803), United States v. Yale Todd (1794), Hayburn's Case (1792), Hylton v. United States (1796), Ware v. (1796). |
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What You'll Learn
- Judicial review was acknowledged by the Constitution's framers
- Judicial review was used by state and federal courts before Marbury v. Madison
- The framers indicated that the power of judges to declare laws unconstitutional was part of the system of separation of powers
- Judicial review was criticised by politicians like Theodore Roosevelt and William Jennings Bryan
- The power of judicial review was asserted by Madison and Hamilton in their campaign for ratification
Judicial review was acknowledged by the Constitution's framers
The concept of judicial review was not new at the time of the US Constitution's framing. The Privy Council, for instance, had used a limited form of judicial review to assess colonial legislation and its validity under the colonial charters. The historical record from the Founding and the early years of the Republic suggests that the framers of the Constitution were aware of judicial review and that some even favoured granting courts this power.
During the Virginia convention, Chief Justice John Marshall observed that if Congress were to make a law not warranted by any of the powers enumerated, it would be considered by the judge as an infringement of the Constitution. Madison and Hamilton also asserted the power of judicial review in their campaign for ratification. In the Federalist No. 39, Madison wrote:
> If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law be in opposition to the Constitution… the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
In addition, several delegates objected to the inclusion of federal judges on the "council of revision" because they believed the federal judiciary, through its power to declare laws unconstitutional, already had the opportunity to protect against legislative encroachment. Elbridge Gerry said federal judges:
> [W]ould have a sufficient check against encroachments on their own department by their exposition of the laws, which involved a power of deciding on their constitutionality. In some states, the judges had actually set aside laws, as being against the constitution. This was done too with general approbation.
Furthermore, debates on the Alien and Sedition Acts and on the power of Congress to repeal the Judiciary Act of 1801 similarly saw recognition of judicial review of acts of Congress. Early Supreme Court Justices seem to have assumed the existence of judicial review. Thus, the Justices on circuit refused to administer a pension act on the grounds of its unconstitutionality, as seen in Hayburn's Case (1792).
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Judicial review was used by state and federal courts before Marbury v. Madison
Judicial review, or the power of the courts to examine the actions of the government and determine whether they are consistent with the constitution, has been a distinctive feature of US constitutional law. While the US Constitution does not expressly grant federal courts the power to declare government actions unconstitutional, the historical record suggests that the framers and ratifiers of the Constitution were aware of the concept of judicial review, and some even favoured granting courts that power.
In fact, judicial review was used by state and federal courts before the Marbury v. Madison case of 1803, which is often regarded as the origin of judicial review. For instance, in an unreported Supreme Court decision in 1794, United States v. Yale Todd, the Supreme Court reversed a pension that was awarded under the same pension act that was at issue in Hayburn's Case. The Court decided that the act designating judges to decide pensions was not constitutional as it was not a proper judicial function. This was the first Supreme Court case to find an act of Congress unconstitutional, although it was not used as a precedent or officially reported.
In 1796, the Supreme Court decided Hylton v. United States, the first case involving a challenge to the constitutionality of an act of Congress. The Court upheld a federal tax on carriages, finding it constitutional. Although the Supreme Court did not strike down the act in question, it engaged in the process of judicial review.
Additionally, between 1789 and 1801, the Supreme Court decided eight cases involving constitutional challenges to federal laws and at least three cases involving state laws. This indicates that the concept of judicial review was already established before the Marbury v. Madison case.
During the Virginia convention, Chief Justice John Marshall, who would later be involved in the Marbury v. Madison case, observed that if Congress made a law not warranted by any of the powers enumerated, judges would consider it an infringement of the Constitution and declare it void. This further supports the argument that judicial review was contemplated and used before the Marbury v. Madison case.
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The framers indicated that the power of judges to declare laws unconstitutional was part of the system of separation of powers
The concept of judicial review was already established at the time of the Founding. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters. The framers of the US Constitution indicated that the power of judges to declare laws unconstitutional was part of the system of separation of powers.
In the Virginia convention, Chief Justice John Marshall observed that if Congress "were to make a law not warranted by any of the powers enumerated, it would be considered by the judge as an infringement of the Constitution which they are to guard. They would declare it void. To what quarter will you look for protection from an infringement of the Constitution, if you will not give the power to the judiciary? There is no other body that can afford such protection."
Madison and Hamilton similarly asserted the power of judicial review in their campaign for ratification. The Federalist No. 39 (James Madison); id. Nos. 78, 81 (Alexander Hamilton). The persons supporting or at least indicating they thought judicial review existed did not constitute a majority of the Framers, but the absence of controverting statements, with the exception of the Mercer-Dickinson comments, indicates at least acquiescence if not agreement by the other Framers.
In the debates on the Alien and Sedition Acts and on the power of Congress to repeal the Judiciary Act of 1801, there was also recognition of judicial review of acts of Congress. Early Supreme Court Justices seem to have assumed the existence of judicial review. Thus, the Justices on circuit refused to administer a pension act on the grounds of its unconstitutionality, see Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792), and Chief Justice Jay and other Justices wrote that the imposition of circuit duty on Justices was unconstitutional, although they never mailed the letter in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), a feigned suit.
The power of judicial review was established in Marbury v. Madison (1803), by declaring the Judiciary Act of 1789 partially unconstitutional. In this case, the U.S. Supreme Court also had to decide whether or not Section 13 of the Judiciary Act was in violation of the Constitution. Although the Supreme Court did not strike down the act in question, the Court engaged in the process of judicial review.
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Judicial review was criticised by politicians like Theodore Roosevelt and William Jennings Bryan
Judicial review has been a part of the US Constitution since the country's founding. The concept was acknowledged by the Constitution's framers, explained in the Federalist Papers, and used by both state and federal courts for more than twenty years before the Marbury v. Madison case in 1803.
Despite its long history, the power of judicial review has been criticized by several politicians, including Theodore Roosevelt and William Jennings Bryan, during the Progressive Era. Roosevelt criticized "fossilized judges" for their unrealistic interpretation of the 14th Amendment and the "liberty of contract" during the Lochner Era, which was named after the Lochner v. New York case in 1905. Roosevelt and Bryan advocated for an amendment to allow the public to recall judges and judicial decisions, giving the people the final say in constitutional interpretation.
William Jennings Bryan, a dominant force in the Democratic Party, was a lawyer, orator, and politician. He ran three times as the party's nominee for President of the United States in the 1896, 1900, and 1908 elections. Bryan played a significant role in passing progressive reforms through Congress and served as Secretary of State under Woodrow Wilson from 1913 to 1915. He was a strong advocate for various progressive causes, including a federal income tax, pure food and drug laws, and a ban on corporate financing of campaigns.
The judicial backlash of the 1890s, which occurred during Bryan's political rise, was the most powerful in US history. The Supreme Court established several consequential principles during this time, including the "separate but equal" doctrine supporting racial segregation and the authorization of force against striking workers. This period, known as the "System of 1896", was established in response to the populist threat led by Bryan.
Theodore Roosevelt, on the other hand, was a prominent leader during the Progressive Era. He prosecuted antitrust cases and implemented progressive policies, but Bryan argued that Roosevelt did not fully embrace progressive ideals. Roosevelt's administration also faced criticism for its decisions in Hirabayashi v. United States (1943) and Korematsu v. United States (1944), where the Court approved curfew and exclusion orders directed at Japanese Americans during World War II.
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The power of judicial review was asserted by Madison and Hamilton in their campaign for ratification
In the Virginia convention, Chief Justice John Marshall observed that if Congress were to make a law not warranted by any of the powers enumerated, it would be considered by the judge as an infringement of the Constitution, which they are to guard. Madison and Hamilton similarly asserted the power of judicial review in their campaign for ratification. Madison's remarks in the Philadelphia Convention, in the Virginia ratifying convention, and in The Federalist, all unequivocally favored the existence of judicial review.
The Framers of the Constitution were aware of judicial review, and some favored granting courts that power. In all, fifteen delegates from nine states made comments regarding the power of the federal courts to review the constitutionality of laws. All but two of them supported the idea that the federal courts would have the power of judicial review. Judicial review was acknowledged by the Constitution's framers, was explained in the Federalist Papers, and in the ratification debates. It was also used by both state and federal courts for more than twenty years before Marbury v. Madison, including the Supreme Court in Hylton v. United States.
The power of judicial review was established in Marbury v. Madison in 1803, when the U.S. Supreme Court also had to decide whether or not Section 13 of the Judiciary Act was in violation of the Constitution. The Supreme Court said that if a law conflicts with the Constitution, the Court must determine which of these conflicting rules governs the case. This was the birth of judicial review. Judicial review is now one of the distinctive features of United States constitutional law, although the Constitution does not expressly grant federal courts the power to declare government actions unconstitutional.
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Frequently asked questions
Yes, the concept of judicial review was already established at the time of the Founding. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters.
Judicial review is the power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution.
The historical record from the Founding and the early years of the Republic suggests that those who framed and ratified the Constitution were aware of judicial review, and some favored granting courts that power. Early Supreme Court Justices seem to have assumed the existence of judicial review.
Some landmark cases of judicial review include Marbury v. Madison, United States v. Yale Todd, and Hayburn's Case.
One key feature of federal judicial power in the US is the authority of federal courts to declare that federal or state government actions violate the Constitution. This power of judicial review is not expressly granted to federal courts by the Constitution but is considered an essential element of democratic government.
