Judicial review in the United States
In the United States, 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 ultimately the United States Constitution. While the U.S. Constitution does not explicitly define the power of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.
Two landmark decisions by the U.S. Supreme Court served to confirm the inferred constitutional authority for judicial review in the United States. 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 which imposed a "carriage tax". The Court performed judicial review of the plaintiff's claim that the carriage tax was unconstitutional. After review, the Supreme Court decided the Carriage Act was constitutional. In 1803, Marbury v. Madison was the first Supreme Court case where the Court asserted its authority to strike down a law as unconstitutional. At the end of his opinion in this decision, Chief Justice John Marshall maintained that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn oath of office to uphold the Constitution as instructed in Article Six of the Constitution.
, the United States Supreme Court has held 176 Acts of the U.S. Congress unconstitutional. In the period 1960–2019, the Supreme Court has held 483 laws unconstitutional in whole or in part.
Judicial review before the Constitution
wrote in Federalist No. 78:But it is not with a view to infractions of the constitution only that the independence of the judges may be an essential safeguard against the effects of occasional ill humours in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity, and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them;...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 North Carolina court and its counterparts in other states treated state constitutions as statements of governing law to be interpreted and applied by judges.
These courts reasoned that because their state constitution was the fundamental law of the state, they must apply the state constitution rather than an act of the legislature that was inconsistent with the state constitution. These state court cases involving judicial review were reported in the press and produced public discussion and comment. Notable state cases involving judicial review include Commonwealth v. Caton, Rutgers v. Waddington, Trevett v. Weeden. Scholar Larry Kramer agreed with Justice Iredell that any judge who enforces an unconstitutional law becomes complicit in the unconstitutionality and that they themselves become lawbreakers.
At least seven of the delegates to the Constitutional Convention, including Alexander Hamilton, John Blair Jr., George Wythe, and Edmund Randolph, had personal experience with judicial review because they had been lawyers or judges in these state court cases involving judicial review. Other delegates referred to some of these state court cases during the debates at the Constitutional Convention. The concept of judicial review therefore was familiar to the framers and to the public before the Constitutional Convention.
Some historians argue that Dr. Bonham's Case was influential in the development of judicial review in the United States.
Provisions of the Constitution
The text of the Constitution does not contain a specific reference to the power of judicial review. Rather, the power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI.The provisions relating to the federal judicial power in Article III state:
The Supremacy Clause of Article VI states:
The power of judicial review has been implied from these provisions based on the following reasoning. It is the inherent duty of the courts to determine the applicable law in any given case. The Supremacy Clause says "his Constitution" is the "supreme law of the land." The Constitution therefore is the fundamental law of the United States. Federal statutes are the law of the land only when they are "made in pursuance" of the Constitution. State constitutions and statutes are valid only if they are consistent with the Constitution. Any law contrary to the Constitution is void. The federal judicial power extends to all cases "arising under this Constitution." As part of their inherent duty to determine the law, the federal courts have the duty to interpret and apply the Constitution and to decide whether a federal or state statute conflicts with the Constitution. All judges are bound to follow the Constitution. If there is a conflict, the federal courts have a duty to follow the Constitution and to treat the conflicting statute as unenforceable. The Supreme Court has final appellate jurisdiction in all cases arising under the Constitution, so the Supreme Court has the ultimate authority to decide whether statutes are consistent with the Constitution.
Statements by the framers of the Constitution regarding judicial review
Constitutional Convention
During the debates at the Constitutional Convention, the Founding Fathers made a number of references to the concept of judicial review. The greatest number of these references occurred during the discussion of the proposal known as the Virginia Plan. The Virginia Plan 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 "council of revision" would have included the president along with some federal judges. Several delegates objected to the inclusion of federal judges on the council of revision. They argued the federal judiciary, through its power to declare laws unconstitutional, already had the opportunity to protect against legislative encroachment, and the judiciary did not need a second way to negate laws by participating in the council of revision. For example, Elbridge Gerry said federal judges "would 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." Luther Martin said: "s to the constitutionality of laws, that point will come before the judges in their official character. In this character they have a negative on the laws. Join them with the executive in the revision, and they will have a double negative." These and other similar comments by the delegates indicated that the federal courts would have the power of judicial review.Other delegates argued that if federal judges were involved in the law-making process through participation on the council of revision, their objectivity as judges in later deciding on the constitutionality of those laws could be impaired. These comments indicated a belief that the federal courts would have the power to declare laws unconstitutional.
At several other points in the debates at the Constitutional Convention, delegates made comments indicating their belief that under the Constitution, federal judges would have the power of judicial review. For example, James Madison said: "A law violating a constitution established by the people themselves, would be considered by the Judges as null & void." George Mason said that federal judges "could declare an unconstitutional law void." However, Mason added that the power of judicial review is not a general power to strike down all laws, but only ones that are unconstitutional:
But with regard to every law however unjust, oppressive or pernicious, which did not come plainly under this description, they would be under the necessity as Judges to give it a free course.
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. Some delegates to the Constitutional Convention did not speak about judicial review during the Convention, but did speak about it before or after the Convention. Including these additional comments by Convention delegates, scholars have found that twenty-five or twenty-six of the Convention delegates made comments indicating support for judicial review, while three to six delegates opposed judicial review. One review of the debates and voting records of the convention counted as many as forty delegates who supported judicial review, with four or five opposed.
In their comments relating to judicial review, the framers indicated that the power of judges to declare laws unconstitutional was 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.
State ratification debates
Judicial review was discussed in at least seven of the thirteen state ratifying conventions, and was mentioned by almost two dozen delegates. In each of these conventions, delegates asserted that the proposed Constitution would allow the courts to exercise judicial review. There is no record of any delegate to a state ratifying convention who indicated that the federal courts would not have the power of judicial review.For example, James Wilson asserted in the Pennsylvania ratifying convention that federal judges would exercise judicial review: "If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void. For the power of the Constitution predominates. Anything, therefore, that shall be enacted by Congress contrary thereto will not have the force of law."
In the Connecticut ratifying convention, Oliver gurr likewise described judicial review as a feature of the Constitution: "This Constitution defines the extent of the powers of the general government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void."
During the ratification process, supporters and opponents of ratification published pamphlets, essays, and speeches debating various aspects of the Constitution. Publications by over a dozen authors in at least twelve of the thirteen states asserted that under the Constitution, the federal courts would have the power of judicial review. There is no record of any opponent to the Constitution who claimed that the Constitution did not involve a power of judicial review.
After reviewing the statements made by the founders, one scholar concluded: "The evidence from the Constitutional Convention and from the state ratification conventions is overwhelming that the original public meaning of the term 'judicial power' included the power to nullify unconstitutional laws."