Eleanor Finch
The concept of judicial review was already established at the time of the Founding of the US Constitution. The Framers were aware of judicial review, and some favored granting courts the power to declare laws unconstitutional. While the text of the Constitution does not contain a specific reference to the power of judicial review, it has been deemed an implied power. The Framers indicated that the power of judges to declare laws unconstitutional was part of the system of separation of powers. However, not all of the Framers supported judicial review, and some opposed the idea of judges having the authority to declare a law void. The only expressed opposition came from Mercer, with a weak seconding from Dickinson.
| Characteristics | Values |
|---|---|
| Name | Mr. Mercer |
| Opposition | Disapproved of judges having the authority to declare a law void |
| Support | Weak seconding from Dickinson |
| Opinion on law-making | Laws ought to be well and cautiously made, then unchangeable |
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What You'll Learn
Mr. Mercer opposed judicial review
Mr. Mercer's opposition to judicial review is notable as practically all of the Framers who expressed an opinion on the issue welcomed the existence of court review of the constitutionality of legislation. Mr. Mercer's opposition to judicial review was weakly seconded by Dickinson. Dickinson was impressed with Mr. Mercer's remarks about the power of judges to set aside the law but was unsure what alternative there could be.
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. There were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions.
Despite Mr. Mercer's opposition, 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 that some favoured granting courts that power. The Framers indicated that the power of judges to declare laws unconstitutional was part of the system of separation of powers. They stated that the courts' power to declare laws unconstitutional would provide a check on the legislature, protecting against the excessive exercise of power.
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Mr. Dickinson seconded Mercer
The only framer of the US Constitution who expressed opposition to judicial review was Mr. Mercer, who was weakly seconded by Mr. Dickinson. Mr. Mercer disapproved of the doctrine that judges, as expositors of the Constitution, should have the authority to declare a law void.
Mr. Dickinson seconded Mr. Mercer, marking one of the few instances of opposition to the concept of judicial review. Their stance stood in contrast to the views of many other Framers, who assumed and welcomed the existence of court review of the constitutionality of legislation. The concept of judicial review was already established at the time of the Founding, with the Privy Council having employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters.
Despite their opposition, the absence of strong controverting statements from Mr. Mercer and Mr. Dickinson suggests at least acquiescence, if not agreement, by the other Framers. The debates in the Convention were not available when the state ratifying conventions acted, so the delegates may not have been fully aware of these differing views on judicial review. However, some Framers did express their views on judicial review in the ratifying conventions, indicating their recognition of its importance.
The Virginia convention, for example, saw Chief Justice John Marshall observe that if Congress made a law not warranted by the powers enumerated, it would be considered an infringement of the Constitution by judges, who would then declare it void. Madison and Hamilton also asserted the power of judicial review in their campaign for ratification. These and other similar statements by Framers indicate support for the power of judges to declare laws unconstitutional as part of the system of separation of powers.
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Judicial review was a familiar concept
Judicial review is the legal power of a court to determine if a statute, treaty, or administrative regulation contradicts or violates the provisions of existing law, a state constitution, or the constitution of a country. In the United States, the federal judicial power is vested in the Supreme Court and inferior courts established by Congress. While the US Constitution does not explicitly define the power of judicial review, it has been inferred from its structure, provisions, and history.
The concept of judicial review was familiar to the framers of the US Constitution and the public before the Constitutional Convention. The Founding Fathers made several references to judicial review during the debates at the convention, particularly during the discussion of the Virginia Plan, which included a "council of revision" that would examine and accept or reject proposed new federal laws. The historical record suggests that the framers were aware of judicial review, with some favouring granting courts that power. Judicial review was acknowledged by the Constitution's framers, explained in the Federalist Papers and ratification debates, and used by both state and federal courts before Marbury v. Madison in 1803.
The first Congress passed the Judiciary Act of 1789, which established the lower federal courts and specified the details of federal court jurisdiction. The act provided for the Supreme Court to hear appeals from state courts when a federal statute was deemed invalid or when a state statute was upheld against a claim that it was repugnant to the Constitution. This provision gave the Supreme Court the power to review state court decisions involving the constitutionality of federal and state statutes, thereby incorporating the concept of judicial review.
Before Marbury v. Madison, judicial review was employed in both federal and state courts, with thirty-one state or federal cases identified during this time in which statutes were struck down as unconstitutional. Judicial review was also used in several other countries, including France, Germany, Italy, and South Korea, often as a result of the influence of US constitutional ideas.
While practically all of the framers who expressed an opinion on the issue welcomed the existence of court review of the constitutionality of legislation, the only expressed opposition to judicial review came from Mr. Mercer, with a weak seconding from Dickinson. Mercer disapproved of the doctrine that judges should have the authority to declare a law void.
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Madison and Hamilton supported judicial review
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. This concept was familiar to the Framers and to the public before the Constitutional Convention.
James Madison and Alexander Hamilton were strong supporters of judicial review. In the Virginia convention, Chief Justice John Marshall observed that if Congress were to make a law that was 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 restated his support for a council of revision, with the great objective being to provide "a check to precipitate, to unjust, and to unconstitutional laws." Madison also proposed and vigorously supported the idea of giving the judiciary an active role in legislation. He believed that the Supreme Court would play a critical role in maintaining the stability of the entire federal system.
Hamilton defended the concept in Federalist No. 78, stating that the interpretation of the laws is the proper and peculiar province of the courts. A constitution, he argued, is, in fact, and must be regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there is an irreconcilable variance between the two, that which has the superior obligation and validity ought to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
In Marbury v. Madison, the Court's opinion established the power of judicial review in American federal law, but it did not invent or create it. Judicial review was already a widely accepted concept in Colonial America, especially in Marshall, Jefferson, and Madison's native Virginia. The idea was based on the theory that in America, only the people were sovereign, not the government, and so the courts should only implement legitimate laws.
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Judicial review protects civil rights
The concept of judicial review was already established at the time of the Founding of the United States. The Framers of the Constitution were aware of judicial review, and some favoured granting courts that power. The first American decision to recognize the principle of judicial review was Bayard v. Singleton, decided in 1787 by the Supreme Court of North Carolina's predecessor.
The Constitution establishes the federal judiciary, with Article III, Section I stating:
> "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
The Constitution permits Congress to decide how to organize the Supreme Court. Congress first exercised this power in the Judiciary Act of 1789, which created a Supreme Court with six justices and established the lower federal court system.
The power of judges to declare laws unconstitutional is part of the system of separation of powers. The framers stated that the courts' power to declare laws unconstitutional would provide a check on the legislature, protecting against excessive exercise of legislative power. Judicial review was discussed in at least seven of the thirteen state ratifying conventions, and was mentioned by almost two dozen delegates.
The Founding Fathers made several references to the concept of judicial review during the debates at the Constitutional Convention. The greatest number of these references occurred during the discussion of the proposal known as the Virginia Plan, which included a council of revision that would have examined proposed new federal laws and would have accepted or rejected them, similar to today's presidential veto.
The Supreme Court's decisions have an important impact on society at large. For example, in the Tinker case, the Court held that "students do not shed their rights at the schoolhouse gate," protecting students' right to protest the Vietnam War by wearing black armbands to school.
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Frequently asked questions
The only expressed opposition to judicial review came from Mr. Mercer, with a weak seconding from Dickinson. Mercer disapproved of the doctrine that judges should have the authority to declare a law void.
Mr. Mercer believed that laws ought to be well and cautiously made and then be uncontrollable.
Including the additional comments made by delegates before and after the Convention, scholars have found that three to six delegates opposed judicial review.
