VIII.1: The Origin of Judicial Review

“Judicial review” means that a court has the power to declare that a law involved in a case brought before it is unconstitutional.

A court has the power to strike down that law if it thinks the law contradicts its interpretation of the Constitution. Such decisions can be appealed to higher courts, and ultimately to the Supreme Court. Therefore, ever since the origin of judicial review, the official interpretation of the Constitution at any particular time is whatever the current Supreme Court says it is.

The origin of judicial review is not the Constitution. The Supreme Court merely assumed that power in 1803 in the case of Marbury v. Madison. In that case, the court under Chief Justice John Marshall decided on its own authority that the courts alone have the power to decide what the Constitution says. (Edwards 1982, 372-3)

On the surface, the Marbury v. Madison Supreme Court decision sounds like a gigantic power grab.

However, some believe there were precedents for the judiciary to have this power. For example, the American colony charters filled the same role as our modern Constitution, and the following quotes refer to events that preceded both the Constitution and the Supreme Court’s 1803 decision:

The origin, however, of the theory that a court could declare an act unconstitutional was found in the history of our charter colonies. Their rights and powers, unlike the ordinary corporation, were determined by their charter, and when they passed a law in excess of the legal powers conferred by their charter its illegality could be determined by their local courts, with the right of appeal to the privy council of England. (Pierce 1908, 201-2)

Furthermore, eight or more of the “leading members” of the Constitutional Convention that wrote our Constitution implied that they assumed the courts would have the power of judicial review. (Wright 1933, 183)

The Federalist Papers are the most authoritative description of the original intent of the Constitution writers, and they hint at a possible earlier origin of judicial review.

For instance, in those papers, Alexander Hamilton (a close associate of John Marshall), wrote:

A constitution 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. (Hamilton 1788, 78)

Also, James Madison spoke to the Constitutional Convention, saying:

It may be a misfortune, that in organizing any government, the explication of its authority should be left to any of its coordinate branches. There is no example in any country where it is otherwise. There is [now in the U.S.] a new policy in submitting it to the judiciary of the United States. (Madison 1788)

Madison didn’t say here that he agreed with this policy, but only that the Constitution implies the policy, without explicitly stating it. He also said that the power of “explication” of the Constitution had to be placed somewhere in the government. He called the American approach “a new policy” because Great Britain’s government, the model the founders’ used for America, gave that power to the legislature, not to the judiciary.

Can you think of a better way to decide what the words in the Constitution mean?

Would you believe me when I say there is a practical way to balance this power between the people at large and the experts at law (judges and justices)?

This site is for discussing how to improve our political system. It is NOT for discussing party politics or political figures. So if you have a non-partisan question or comment, feel free to leave it below.

Sources:

Edwards, David D. 1982. The American Political Experience. USA: Prentice-Hall.

Hamilton, Alexander. 1787-1788. In The Federalist Papers by Alexander Hamilton, James Madison and John Jay.

Madison, James 1788. Speech before constitutional convention on June 20. https://founders.archives.gov/documents/Madison/01-11-02-0101 (last accessed 6/11/18).

Pierce, Franklin. 1908. Federal Usurpation. New York: D. Appleton and Company.

Wright, Benjamin F., Jr. 1933. “The Origins of the Separation of Powers in America”. In Economica, No. 40 (May, 1933), 169-185. Accessed Feb. 18, 2020. doi:10.2307/2548765. Stable URL: http://www.jstor.org/stable/2548765