Judicial Review: An Unwritten Constitutional Power

Judicial review is the power of the federal courts to test federal and state legislative enactments and other actions by the standards of what the Constitution grants and withholds. While it is one of the distinctive features of United States constitutional law, the U.S. Constitution does not explicitly mention or grant federal courts the power of judicial review. The power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI of the U.S. Constitution. Judicial review was first asserted in Marbury v. Madison, where an act of Congress was struck down as inconsistent with the Constitution.

Explore related products

Marbury v. Madison: The Origins and Legacy of Judicial Review (Landmark Law Cases and American Society)

$21.95 $29.99

Judicial Process: Law, Courts, and Politics in the United States

$146.21 $234.95

Examples & Explanations for Federal Courts

$53 $76.95

Constitutional & Administrative Law: Questions and Answers (Q&A)

$33.65 $36.27

Constitutional Law: [Connected eBook with Study Center] (Aspen Casebook)

$237.39 $359

Constitutional Law (University Casebook Series)

$305

Judicial review is not mentioned in the US Constitution

Judicial review is a cornerstone of constitutional law in the United States, but it is not expressly mentioned in the US Constitution. Judicial review is the power of the federal courts to test federal and state legislative enactments and other actions against the standards of the Constitution.

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. Many of the framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation. 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.

The power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI of the US Constitution. Judicial review of the government was established in the landmark decision of Marbury v. Madison, the first Supreme Court decision to strike down an act of Congress as unconstitutional. In this case, the Court had to decide whether an Act of Congress or the Constitution was the supreme law of the land. The Judiciary Act of 1789 gave the Supreme Court original jurisdiction to issue writs of mandamus (legal orders compelling government officials to act in accordance with the law). A suit was brought under this Act, but the Supreme Court noted that the Constitution did not permit the Court to have original jurisdiction in this matter. Since Article VI of the Constitution establishes the Constitution as the supreme Law of the Land, the Court held that an Act of Congress that is contrary to the Constitution could not stand.

While judicial review is now generally accepted, it still has detractors, and its supporters disagree about its doctrinal basis and its application. One of the first critics of judicial review was Richard Dobbs Spaight, a signer of the Constitution.

The power to declare laws unconstitutional is implied

Judicial review is a cornerstone of constitutional law in the United States. It is the power of the federal courts to test federal and state legislative enactments and other actions by the standards of what the Constitution grants and withholds. While judicial review is not expressly mentioned in the text of the US Constitution, the power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI of the US Constitution.

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. Many of the framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation. In enacting the Judiciary Act of 1789, Congress explicitly provided for the exercise of the power.

The landmark decision of Marbury v. Madison established judicial review of government acts. In this case, the Court had to decide whether an Act of Congress or the Constitution was the supreme law of the land. The Judiciary Act of 1789 gave the Supreme Court original jurisdiction to issue writs of mandamus (legal orders compelling government officials to act in accordance with the law). A suit was brought under this Act, but the Supreme Court noted that the Constitution did not permit the Court to have original jurisdiction in this matter. Since Article VI of the Constitution establishes the Constitution as the Supreme Law of the Land, the Court held that an Act of Congress that is contrary to the Constitution could not stand. Chief Justice John Marshall famously stated, "It is emphatically the duty of the Judicial Department to say what the law is."

The Supreme Court continues to play an important role in the constitutional system of government. It is the court of last resort for those seeking justice. Due to its power of judicial review, it ensures that each branch of government recognizes the limits of its own power. It protects civil rights and liberties by striking down laws that violate the Constitution. It also sets appropriate limits on democratic government by ensuring that popular majorities cannot pass laws that harm and/or take undue advantage of unpopular minorities.

The legitimacy of judicial review has been challenged

One of the first critics of judicial review was Richard Dobbs Spaight, a signer of the Constitution. While judicial review is now accepted as a cornerstone of constitutional law, it still has detractors, and supporters disagree about its doctrinal basis and application. Multiple bills have been proposed in Congress that would require a supermajority for justices to exercise judicial review.

The Supreme Court's power of judicial review is not mentioned in the Constitution but is derived from Article III and Article VI. The Court's ability to declare a Legislative or Executive act in violation of the Constitution is considered one of its most important powers, allowing it to ensure that each branch of government recognises the limits of its power and protect civil rights and liberties.

The historical record suggests that those who framed and ratified the Constitution were aware of judicial review, and some favoured granting courts that power. Early Supreme Court Justices appear to have assumed the existence of judicial review, and in enacting the Judiciary Act of 1789, Congress explicitly provided for the exercise of this power. Debates on the Alien and Sedition Acts and the power of Congress to repeal the Judiciary Act of 1801 also saw recognition of judicial review of acts of Congress.

Explore related products

Constitutional Law: Principles and Polices (Aspen Treatise)

$97.38 $126.95

Constitutional Law: a QuickStudy Laminated Reference Guide

$8.32 $8.95

An Introduction to Constitutional Law: 100+ Supreme Court Cases Everyone Should Know

$26 $34.95

Constitutional Law For Dummies

$18 $29.99

Constitutional Law [Connected eBook with Study Center] (Aspen Casebook)

$75.91 $345

Examples & Explanations for Constitutional Law: Individual Rights (Examples & Explanations Series)

$76.95

Judicial review is a distinctive feature of US constitutional law

Judicial review is a cornerstone of US constitutional law, despite not being mentioned in the US Constitution. It is the idea that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judiciary. This power of the federal courts to test federal and state legislative enactments and other actions against the standards of the Constitution is nowhere expressly conveyed in the Constitution. However, it has been deemed an implied power, derived from Article III and Article VI of the US Constitution.

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 also several instances of state court invalidation of state legislation as inconsistent with state constitutions. Many of the framers who expressed an opinion on the issue appear to have assumed and welcomed the existence of court review of the constitutionality of legislation. In 1794, United States v. Yale Todd was the first Supreme Court case to find an act of Congress unconstitutional, although it was not used as a precedent. In 1796, Hylton v. United States was the first case decided by the Supreme Court that involved a challenge to the constitutionality of an act of Congress.

The landmark case of Marbury v. Madison in 1803 established judicial review of government acts. Chief Justice John Marshall famously stated, "It is emphatically the duty of the Judicial Department to say what the law is." Since then, the Supreme Court has played an essential role in ensuring that each branch of government recognises the limits of its own power. It protects civil rights and liberties by striking down laws that violate the Constitution and sets appropriate limits on democratic government.

While judicial review is now generally accepted, it still has detractors, and supporters disagree about its doctrinal basis and application. One of the first critics of judicial review was Richard Dobbs Spaight, a signer of the Constitution. Some have argued that the Framers did not intend for judicial review to exist, and it is not mentioned in the Constitution. However, the power of judicial review has been solidified and expanded, becoming a distinctive feature of US constitutional law.

Judicial review is a fundamental principle of the US system of government

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 also several instances of state court invalidation of state legislation as inconsistent with state constitutions. Many of the framers who expressed an opinion on the issue appear to have assumed and welcomed the existence of court review of the constitutionality of legislation.

The Judiciary Act of 1789 gave the Supreme Court original jurisdiction to issue writs of mandamus (legal orders compelling government officials to act in accordance with the law). In the case of Marbury v. Madison (1803), the Supreme Court noted that the Constitution did not permit it to have original jurisdiction in this matter. Since Article VI of the Constitution establishes the Constitution as the supreme law of the land, the Court held that an Act of Congress that is contrary to the Constitution could not stand. This was the first Supreme Court decision to strike down an act of Congress as unconstitutional.

The Supreme Court continues to review the constitutionality of statutes, but Congress and the states retain some power to influence what cases come before the Court. For example, the Constitution gives Congress power to make exceptions to the Supreme Court's appellate jurisdiction, a practice known as jurisdiction stripping.

Frequently asked questions