Simone Lawson
Judicial review, the power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government, has been a key feature of federal judicial power in the US. 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 was acknowledged by the Constitution's framers, was explained in the Federalist Papers, and was used by both state and federal courts for more than twenty years before Marbury v. Madison in 1803, a case that established the concept of judicial review. The concept of judicial review also existed in other countries before the US Constitution, such as in the British Commonwealth, and after World War II, many countries adopted judicial review due to the influence of US constitutional ideas.
| Characteristics | Values |
|---|---|
| Judicial review in the US Constitution | The power of federal courts to review the constitutionality of laws |
| The concept of judicial review | Already established at the time of the Founding |
| The Privy Council | Employed a limited form of judicial review to review colonial legislation |
| Judicial review in debates | Debates on the Alien and Sedition Acts and on the power of Congress to repeal the Judiciary Act of 1801 |
| Early Supreme Court Justices | Assumed the existence of judicial review |
| Hayburn's Case, 1792 | Justices refused to administer a pension act on grounds of unconstitutionality |
| Hylton v. United States, 1796 | Chief Justice Jay wrote that the imposition of circuit duty on Justices was unconstitutional |
| Marbury v. Madison, 1803 | Established the concept of "judicial review" |
| Judicial review in other countries | France, Germany, Italy, South Korea, India, Japan, Pakistan, Kenya, New Zealand, Austria, Spain |
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What You'll Learn
Judicial review in US constitutional law
Judicial review is a distinctive feature of US constitutional law, giving federal courts the authority to declare that federal or state government actions violate the Constitution. The US Constitution does not expressly grant federal courts the power to declare government actions unconstitutional, but the historical record suggests that those who framed and ratified the Constitution were aware of judicial review, and some favoured granting courts this power.
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 was acknowledged by the Constitution's framers, was explained in the Federalist Papers, and was used by both state and federal courts for more than twenty years before Marbury v Madison in 1803. This case, decided by Chief Justice John Marshall, is considered a landmark in judicial review, with Marshall asserting that if Congress made a law not warranted by the powers enumerated, it would be considered by the judge as an infringement of the Constitution, and they would declare it void.
In the years before Marbury, there were several instances of judicial review in state courts, including Commonwealth v Caton (Virginia, 1782), Rutgers v Waddington (New York, 1784), and Trevett v Weeden (Rhode Island, 1786). Bayard v Singleton, decided in 1787 by the Supreme Court of North Carolina's predecessor, was the first American decision to recognise the principle of judicial review. In 1792, Hayburn's Case saw the Justices on circuit refuse to administer a pension act on the grounds of its unconstitutionality. In 1794, United States v Yale Todd saw the Supreme Court reverse a pension that was awarded under the same pension act, deciding that the act designating judges to decide pensions was not constitutional.
In 1796, Hylton v United States was the first case decided by the Supreme Court involving a direct challenge to the constitutionality of an act of Congress, the Carriage Act of 1794. The Court performed a judicial review of the plaintiff's claim that the carriage tax was unconstitutional, ultimately upholding the tax. 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.
Since the adoption of the Constitution, some have argued that the power of judicial review gives the courts the ability to impose their own views of the law, without adequate checks from any other branch of government. The power of judicial review was criticised heavily during the Progressive Era by leading politicians like Theodore Roosevelt and William Jennings Bryan.
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Judicial review in state court
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. If actions are judged to be inconsistent, they are declared unconstitutional and, therefore, null and void.
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 was acknowledged by the Constitution's framers, was explained in the Federalist Papers, and was used by both state and federal courts for more than twenty years before Marbury v. Madison.
In the Virginia convention, Chief Justice John Marshall observed:
> 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 on the constitution, if you will not give the power to the judiciary? There is no other body that can afford such protection.”
Both 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 agreements by the other Framers.
In debates on the Alien and Sedition Acts and on the power of Congress to repeal the Judiciary Act of 1801, there was 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, 2 U.S. (2 Dall.) 409 (1792).
In 1799, Charles Pinckney commented:
> "On no subject am I more convinced, than that it is an unsafe and dangerous doctrine in a republic, ever to suppose that a judge ought to possess the right of questioning or deciding upon the constitutionality of treaties, laws, or any act of the legislature. It is placing the opinion of an individual, or of two or three, above that of both branches of Congress, a doctrine which is not warranted by the Constitution, and will not, I hope, long have many advocates in this country.”
Madison’s subsequent changes of position are striking. His remarks in the Philadelphia Convention, in the Virginia ratifying convention, and in The Federalist, cited above, all unequivocally favor the existence of judicial review.
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 had been at issue in Hayburn's Case. The Court apparently decided that the act designating judges to decide pensions was not constitutional because this was not a proper judicial function. This was the first Supreme Court case to find an act of Congress unconstitutional.
Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796) was the first case decided by the Supreme Court that involved a challenge to the constitutionality of an act of Congress. It was argued that a federal tax on carriages violated the constitutional provision regarding "direct" taxes. The Supreme Court upheld the tax, finding it was constitutional. Although the Supreme Court did not strike down the act in question, the Court engaged in the process of judicial review.
In 1803, the Marbury v. Madison case established the concept of "judicial review". The Supreme Court ruled that they could not force Secretary of State James Madison to issue paperwork to complete the appointment of William Marbury as a Justice of the Peace. However, they did find it illegal.
In conclusion, judicial review in state court was a concept that was already familiar at the time of the Founding. It was acknowledged by the Constitution's framers, was explained in the Federalist Papers, and was used by both state and federal courts before being established in the Marbury v. Madison case.
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Judicial review in other countries
Judicial review is a concept that has been adopted by several countries, albeit with some variations. In the US, judicial review is a distinctive feature of constitutional law, empowering federal courts to declare government actions as unconstitutional. However, this power is not explicitly granted by the US Constitution, and its legitimacy has been historically contested.
In France, judicial review is conducted by a constitutional council called the Conseil Constitutionnel, which has a mixed judicial-legislative character. This council reviews laws in the abstract, before they take effect, and without the need for an actual case or controversy. Germany, Italy, and South Korea have established special constitutional courts, while India, Japan, and Pakistan have supreme courts that exercise judicial review akin to the US model. Austria, Germany, South Korea, and Spain allow judicial review after a law's enactment, in either abstract or concrete cases.
The influence of US constitutional ideas, particularly the notion of checks and balances, has led many countries to adopt judicial review after World War II. This shift was partly influenced by the belief that unchecked government power contributed to the rise of totalitarian regimes in pre-World War II Germany and Japan.
The concept of judicial review was not entirely novel during the US's early years. The Privy Council, for instance, employed a limited form of judicial review to scrutinize colonial legislation's validity under colonial charters. Similarly, English common law recognized the role of courts in interpreting law, a tradition that predated American independence.
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Judicial review in US history
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. If actions are judged to be inconsistent, they are declared unconstitutional and, therefore, null and void.
The concept of judicial review was already established at the time of the US 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 was acknowledged by the Constitution's framers, was explained in the Federalist Papers, and was used by both state and federal courts for more than twenty years before Marbury v Madison in 1803, including the Supreme Court in Hylton v United States (1796). In this case, the constitutionality of a federal law was argued before the Justices and upheld on its merits.
In Marbury v Madison, the Supreme Court ruled that they could not force Secretary of State James Madison to issue paperwork to complete the appointment of William Marbury as a Justice of the Peace. However, they did find it illegal. This case ultimately established the concept of "judicial review", which the Supreme Court assumed it had. Judicial review was also criticised heavily during the Progressive Era by leading politicians such as Theodore Roosevelt and William Jennings Bryan.
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. Both Madison and Hamilton similarly asserted the power of judicial review in their campaign for ratification. The persons supporting or indicating that they thought judicial review existed did not constitute a majority of the Framers, but the absence of controverting statements indicates at least acquiescence if not agreement by the other Framers.
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Judicial review in the Supreme Court
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. If actions are deemed inconsistent, they are declared unconstitutional and, therefore, null and void.
The concept of judicial review was already established at the time of the US 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 was acknowledged by the Constitution's framers, was explained in the Federalist Papers, and was used by both state and federal courts for more than twenty years before Marbury v Madison.
In the Virginia convention, Chief Justice John Marshall observed:
> 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.
Both 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).
In 1803, the Supreme Court's opinion in Marbury v Madison ruled that they could not force Secretary of State James Madison to issue paperwork to complete the appointment of William Marbury as a Justice of the Peace. However, they did find it illegal. This case ultimately established the concept of "judicial review", which the Supreme Court assumes it has.
In 1862, the 37th Congress enacted, and Lincoln signed, Act CXI of 1862, which explicitly overturned both holdings of the Dred Scott v Sandford decision, which exacerbated national divisions over slavery.
The power of judicial review was criticized heavily during the Progressive Era by leading politicians like Theodore Roosevelt and William Jennings Bryan. In 1910, Roosevelt began criticizing "fossilized judges", who were using an unrealistic interpretation of the 14th Amendment to strike down progressive legislation.
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Frequently asked questions
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. Actions judged inconsistent are declared unconstitutional and, therefore, null and void.
Judicial review was already a familiar concept before the US Constitution. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters.
In 1792, the Justices on circuit refused to administer a pension act on the grounds of its unconstitutionality. In 1794, the Supreme Court reversed a pension that was awarded under the same pension act. In 1796, the constitutionality of a federal tax on carriages was challenged, and the Supreme Court upheld the tax, finding it was constitutional.
In 1803, the Supreme Court's opinion in Marbury v. Madison established the concept of "judicial review". The Court ruled that they could not force the Secretary of State, James Madison, to issue paperwork to complete the appointment of William Marbury as a Justice of the Peace. However, they did find it illegal.
