Judicial Review Origins in the United States

Judicial Review Origins

Introduction to Judicial Review Origins

Although the Constitution itself is silent about judicial review, evidence indicates that many people anticipated that the courts established by the Constitution would exercise such a power to some degree. The framers of the Constitution were familiar with the concept. Before the Constitution was adopted, state courts occasionally struck down laws for violating state constitutions. Furthermore, the power was specifically discussed in the debates surrounding adoption of the Constitution. In The Federalist Papers, a series of essays advocating ratification of the Constitution, Alexander Hamilton wrote that the courts have a duty “to declare all acts contrary to the manifest tenor of the Constitution void.” Hamilton felt that without this power, the protection of fundamental rights included in the Constitution would amount to nothing. In a letter to James Madison during the framing of the Bill of Rights (the first ten amendments to the Constitution), Thomas Jefferson agreed with Hamilton’s assertion.

In 1803 in Marbury v. Madison, the Supreme Court firmly established its authority to review and invalidate government actions that are incompatible with the Constitution. In his controversial decision in that case, Chief Justice John Marshall declared that it is the duty of the courts “to say what the law is.” If a particular act of Congress violates the higher law of the Constitution, then the courts must reject the incompatible law. In the 1821 decision of Cohens v. Virginia Marshall made it clear that the federal courts may also review whether state laws violate the Constitution.

Under the Supremacy Clause of the U.S. Constitution (Article VI), state judges are bound by the federal Constitution and share equally in the power of judicial review. State courts may also review state laws and state officials’ actions under state constitutions.” (1)

Judicial Review in the legal literature

In the article “The Supreme Court and Unconstitutional Acts of Congress”, authored by Edward S. Corwin and published in the Michigan Law Review (Vol. 4, No. 8, Jun., 1906, pp. 616-630), he mentioned the idea of Judicial Review Paramountcy in the following terms, in relation with the Judicial Review issue and the entry in this legal encyclopedia about the legislation held unconstitutional by the Supreme Court:

“Our authors are really at variance at three distinct points:

1. Did the framers of the Constitution bestow in terms the power in question upon the federal judiciary?
2. If they did not, did they yet believe that the judiciary would have the power, simply by virtue
   of its position in relation to the other departments of government, and particularly in relation to a rigid Constitution?
3. Was there more than one way of conceiving the federal judiciary’s position in these relations? Let us consider these questions in the order in which they are propounded.

(…) Professor McLaughlin ventures the opinion that power to supervise federal legislation and to nullify it when inconsistent with the Constitution was expressly bestowed upon the
federal judiciary by the clause, “Cases … arising under this Constitution,” of Art. III, Sec. 2, of that instrument. In this connection he cites Brinton Coxe’s Judicial Power and Unconstitutional
Legislation, a work highly polemical in tone and written with the avowed purpose of proving that “the framers of the Constitution actually intended … that the United States Supreme Court
should be competent in ‘all litigations before it to decide upon the questioned constitutionality of United States laws, and to hold the same void when unconstitutional”; that this power rests, not upon mere “inference or implication,” but upon “express texts” of the Constitution.

But one “express text” is adduced: viz., the one quoted by Professor McLaughlin. Coxe’s argument in behalf of his contention is as follows: “On August 6th that committee [of five]
reported the draft of a Constitution. The beginning of the 2nd section of its IIth Article reads: ‘The jurisdiction of the Supreme Court shall extend to all cases arising under laws passed by the
legislature of the United States.’ On August 27th, when the 11th Article of the draft Constitution was under consideration, and the above text was reached, the following proceedings took place, as reported by Madison: ‘Dr. Johnson moved to insert the words “this Constitution and” before the word “laws.” Mr. Madison doubted whether this was not going too far, to extend the jurisdiction of the court generally to cases arising under the Constitution [Coxe’s italics], and whether it ought not to be limited to cases of a judiciary nature. The right of expounding the Constitution, in cases not of this nature, ought not to be given to that department.
The motion of Dr. Johnson was agreed nenz. con., it being generally supposed that the jurisdiction given was constructively limited to cases of a judicial nature.’

The above argument is open to disparagement at several points.

In the first place, the Johnson amendment was carried (…), and almost without discussion, a rather suspicious circumstance in connection with a proposition of so great importance as Mr. Coxe would fain make it. In the second place, it is difficult to see what Mr. Coxe adds to the clause, “cases under the Constitution,” by laboriously drawing it from Madison’s Notes, instead of going directly to the Constitution for it. For, in the third place, the clause itself needs elucidation, and until that need is met, there is a plain step of the flimsiest kind of conjecture between the fact that such a clause was incorporated in the Constitution and the contention
which Mr. Coxe makes that, the federal judiciary was thereby vested with the right to veto unconstitutional acts of Congress.

What then does the phrase, “cases … arising under the Constitution” mean?.

Fortunately Madison expounded this very phrase in the Virginia Convention. “It may be a misfortune,” said he, “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 a new policy in submitting it to the judiciary of the United States. That cases of a federal nature will arise, will be obvious to every gentleman, who will recollect that the states are laid under restrictions; and that rights of the Union are secured by these restrictions; they may involve equitable as well as legal controversies. With respect to the laws of the Union, it is so necessary and expedient, that the judicial power should correspond with the legislative, that it has not been objected to. With respect to treaties, there is a peculiar propriety in the judiciary expounding them.” A careful inspection of the order in which Madison develops his thought in the above quotation will reveal that his idea of “cases under the Constitution” was that they were “cases of a federal nature,” arising because of unwarranted acts not of Congress but of the states. This analysis, moreover, is conclusively confirmed by Hamilton’s words in Federalist No. LXXX.5 “It has been asked,” he writes, “what is meant by ‘cases arising under the
Constitution,’ in contradistinction from those ‘arising under the laws of the United States’? The difference has already been explained. (…)

We come now to the third phase of our subject: an examination of the argument framed in justification of allowing the courts to pass upon the validity of the acts of a coordinate legislature. The essence of Hamilton’s argument in Federalist No. LXXVII, and likewise of Marshall’s in Marbury v. Madison, except for the fact that Marshall cites rather incidentally the clause, “cases … arising under the Constitution,” is as follows: The court, like the other coordinate departments, is sworn to uphold the Constitution; it is also sworn to enforce the laws made under the authority of that Constitution; but, perchance, that authority has been transcended by the legislature; there is then a discrepancy between the Constitution and the law made to its derogation; but the Constitution is the act of the people and designed by them to be fundamental, the law is merely the act of the legislature, the people’s representatives; obviously the latter must yield to the former, if the power to amend the Constitution, which the people have reserved to themselves, is not to be transferred to the legislature, and the Constitution thus put on a level with ordinary enactment.

It would be useless to deny, even if it were desirable to do so, that this is a very convincing piece of legal dialectic. Yet, if we can put ourselves back to a time when the doctrine in defense of which it was formulated had not behind it a long lapse of years and many precedents, it is probable that we shall find that, like most abstract argumentation, it abounds in assumptions and dilemmas, which we either approve or ignore in our present attitude toward it. To begin with, why should a constitution-more particularly a state constitution-be regarded as more fundamental than a law?. Of course, it is answered that the former is the act of the people themselves, the latter of their representatives.

But the fact of the matter is, that but two of the thirteen state constitutions in existence in I789 had ever been referred to the people for their approval. Nor has the practice of allowing constitutional conventions to promulgate the result of their labors without referendum obsolete today.

Why then should the enactment of the people’s representatives of say three decades ago have greater validity than the enactment of the people’s representatives of today? Why should a constitutional convention, as transient a body as any electoral college, as responsive,
without doubt, to the whims of its little day, be so much more authoritative a body than the state legislature, the continual embodiment of the state’s residual sovereignty? Or granting the feature of referendum as a necessary item in the establishment of a state constitution, why should a constitution thus established be of greater authority than a law enacted by the legislature and likewise submitted to popular referendum?.

I am arguing against the rigid constitution, you suggest. That, however, is not the object of my
questions. I wish to show that, to instance the fundamental character of a constitution-of a state constitution, particularly-in arguing for judicial paramountcy, is to argue in a circle, since, prima facie, the principal mark of the Constitution’s fundamental character is its defense by the paramount judiciary.

But turn now more particularly to the relation of the federal judiciary to the federal Constitution. As we saw above, it seems fairly certain that the framers of the Constitution did not expressly confer upon the federal courts the power to question the validity of federal legislation; the power is therefore alleged to flow from the nature of the judicial office itself. But is it a judicial power?.

If the President’s power of veto makes him a branch of the legisture, as is generally admitted-and such indeed is the historical character of the veto-why does not its power of veto make the
Supreme Court a branch of the legislature too?. But, whereas the President’s legislative function is expressly bestowed upon him by the Constitution, that of the Supreme Court is derived only by implication-and that, moreover, in the face of the theory of a government of delegated powers and of the other theory of separation of powers.

Suppose the President had secured his veto power in the same way that the Supreme Court did its similar power!. Suppose the Supreme Court, whose power to nullify unconstitutional acts of Congress rests upon a process of ratiocination, should nullify an act of Congress the alleged unconstitutionality of which also rests entirely upon argumentation! Yet what was the significance of the divided bench in the Dred Scott decision, in Hepburn v. Griswold, in the Income Tax Case?.”

Resources

Notes and References

• Information about Judicial Review Origins in the Encarta Online Encyclopedia

Guide to Judicial Review Origins