JUDICIAL REVIEW

Judicial review, in its most widely accepted meaning, is the power of courts to consider the constitutionality of acts of other organs of government when the issue of constitutionality is germane to the disposition of lawsuits properly pending before the courts. This power to consider constitutionality in appropriate cases includes the courts' authority to refuse to enforce, and in effect invalidate, governmental acts they find to be unconstitutional.

Judicial review is America's most distinctive contribution to constitutionalism. Although courts have exercised judicial review almost from the beginning of American constitutional government, the question of the legitimacy of that judicial power has often provoked controversy as well as recurrent charges that American judges usurped the authority. Nearly two centuries of exercises of and popular acquiescence in the power have quieted the storms over its basic justifiability in recent decades, but vehement controversy continues regarding the proper scope and authority of judicial rulings on constitutionality. Moreover, particular exercises of judicial review continue to stir passionate political debates, as they have from the beginning.

The classic justification for judicial review was set forth by Chief Justice john marshall in marbury v. madison (1803). Marshall relied on general principles and constitutional text. His arguments from principle are not compelling. For example, his unchallengeable assertion that the Constitution was designed to establish a limited government does not demonstrate that courts should enforce those limitations. Constitutions prescribing limits on government had been adopted before 1803, as many have been since; but relatively few look to the judiciary for enforcement. Similarly, the fact that judges take an oath to support the Constitution does not imply judicial review, for the Constitution requires the oath of all federal and state officers. Far more persuasive are Marshall's references to two passages of the constitutional text. First, Article III lists cases "arising under the Constitution" as one of the subjects included within the judicial power of the united states, suggesting that constitutional questions can give rise to judicial rulings. Second, the supremacy clause of Article VI lists the Constitution first as among the legal sources that "shall be the supreme Law of the Land."

Although the inferences derivable from the constitutional text are not unchallengeable, they provide the strongest available support for Marshall's justification for judicial review. True, Article VI is specifically addressed only to state judges, for the "supreme Law of the Land" clause is followed by the statement that "Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Still, the constitutional convention debates and federal legislation, ever since Section 25 of the judiciary act of 1789, have contemplated Supreme Court review of state court rulings on constitutional questions, and it is surely plausible to argue that the Supreme Court's authority on review would be no less than that of state judges obeying the command of the supremacy clause.

Federal court review of state court judgments is an especially plausible aspect of judicial review, for it is a typical policing technique to maintain the delineations of governing authority in federal systems. That strand of judicial review is common in other federal schemes as well, as in Switzerland and Australia. Yet even federal systems are conceivable without judicial review. Thus, nationalists at the Constitutional Convention initially urged reliance on the congressional veto and on military force to curb excesses by the states. The supremacy clause, and its reliance on routine judicial power to enforce federalistic restraints, stemmed from suggestions by states' rights forces at the convention.

Judicial review in the interest of federalism has played an important role in the United States; some observers, indeed, view it as the most essential function of judicial review. As Justice oliver wendell holmes once put it: "I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States." The supremacy clause goes a long way toward assuring this protection of the Union; but it provides less compelling justification for judicial review of congressional acts.

The constitutional text cited by John Marshall supports judicial review in all its aspects in a more basic sense. Article III and Article VI both reflect the premise central to judicial review—the premise that the Constitution is to be considered a species of law and accordingly cognizable in courts of law. Judicial review is essentially the judicial enforceability of constitutional norms, and viewing the Constitution as law rather than mere policy or precatory adjuration is the keystone of the more persuasive argument that the American constitutional scheme was designed to rely on judges, not merely troops or political restraints, to enforce constitutional limits.

This view of the Constitution as law—the view central to the argument for giving courts a major role in constitutional enforcement—made it relevant for Marshall to state that it was "emphatically the province and duty of the judicial department to say what the law is," and to describe judicial review as an outgrowth of the normal task of judges: to adjudicate the cases before them on the basis of all relevant rules of law, rules that include those stemming from the Constitution. And that in turn made it plausible for him to say that, where a statute and the Constitution conflict, the courts must enforce the superior Constitution and "disregard" the statute. That, to Marshall, was "of the very essence of judicial duty."

Even if Marshall's views of the Constitution as law and of the "judicial duty" were unanswerable, charges of usurpation would not be stilled. Whatever the strength of the inferences from Articles III and VI, it is undeniable that the power of judicial review is not explicitly granted by the Constitution—in contrast to the constitutions of the nations that, in modern times, have embraced systems similar to the American scheme of judicial review, such as West Germany, Italy, India, and Japan. Defenders of judicial review have accordingly sought to find added support for Marshall's conclusion in historical understandings and practices. None of the sources relied on, however, conveys overwhelming force.

For example, it is true that Marshall's argument was to a considerable extent anticipated by alexander hamilton in the federalist #78; but Hamilton's essay was after all only a propagandistic defense of the Constitution during the ratification debates. Similarly, the arguments from historical practice are inconclusive at best. The much invoked statement by edward coke in bonham ' scase (1610)—that "the common law will controul Acts of Parliament, [and] adjudge them to be utterly void" when they are "against common right and reason"—was inconsistent with British practice at the time and thus is not even respectable obiter dictum. More relevant was the appellate jurisdiction of the privy council over colonial courts; but invalidation of legislation through that route was rare and unpopular. And the much debated alleged precedents in the practice of state courts during the years immediately following independence hardly establish a well-entrenched practice of judicial review in the era of the articles of confederation. The preconstitutional examples that withstand scrutiny are few and controversial, and in any event it is not clear that many delegates at the Constitutional Convention knew about the scattered actual or alleged instances of invalidation of state laws by state judges.

Nor do the statements in the Constitutional Convention and the state ratification debates provide ironclad proof that judicial review was intended by the Framers. While it is true that most of the statements addressing the issue supported such a judicial power, it is equally true that only a minority of speakers at the Constitution framing and ratifying conventions expressed their views. The most important statements at the Constitutional Convention came during the discussion of the council of revision proposal—a proposal that the Justices join with the President in exercising the veto power. That proposal was rejected, partly on grounds supporting the legitimacy of judicial review. Thus, luther martin, in criticizing "the association of the Judges with the Executive" as a "dangerous innovation," argued that, "as to the Constitutionality of laws, that point will come before the Judges in their proper 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."

Some scholars have argued, questionably, that judicial review was so normal a judicial function that it was taken for granted by the Framers. henry m. hart and Herbert Wechsler claimed to find clear support in the Convention debates: "The grant of judicial power was to include the power, where necessary in the decision of cases, to disregard state or federal statutes found to be unconstitutional. Despite the curiously persisting myth of usurpation, the Convention's understanding on this point emerges from its records with singular clarity." But with regard to original intent, edward s. corwin's Senate testimony on the 1937 Court-packing plan still represents a fair summary of the state of the record. Corwin stated that the "people who say the framers intended [judicial review] are talking nonsense," but he added that "people who say they did not intend it are talking nonsense." As Leonard W. Levy commented after noting Corwin's assessment that there is "great uncertainty" on the issue: "A close textual and contextual examination of the evidence will not result in an improvement on these propositions."

Most important in the search for preconstitutional bases for judicial review authority is probably the late-eighteenth-century prevalence of general ideas conducive to the acceptance of the power asserted in Marbury v. Madison. The belief in written constitutions to assure limited government was hardly an American invention, but Americans had an unusually extensive experience with basic, higher law documents of government, from royal charters to state constitutions and the Articles of Confederation. Yet it is possible to have constitutions without judicial review: to say that a government cannot exceed constitutional limits does not demonstrate who is to decide. It bears reiterating, then, that viewing a constitution as a species of "law" was the vital link between constitutionalism and judicial competence to decide constitutional issues. Moreover, the view that the Constitution was an act of the people rather than of the state governments helped provide an ideology congenial to Marshall's insistence that the courts could, in the name of the people, refuse to enforce the acts of the people's representatives.

Accepting the persuasiveness of Marshall's core argument is not tantamount to endorsing all of the alleged implications of judicial review that are pervasive in the late twentieth century. Marshall's stated view of the role of courts in constitutional cases was a relatively modest one; after nearly two centuries of exercise of judicial review by courts, and especially the Supreme Court, the scope and binding effect of judicial rulings are far broader. Most of Marshall's argument was largely defensive, designed to undergird judicial competence and authority to adjudicate issues of constitutionality. He insisted that the Constitution is "a rule for the government of courts as well as the legislature" and concluded that " courts, as well as other departments, are bound by that instrument." Modern perceptions, by contrast, often view the courts as playing a superior or supreme role in constitutional interpretation. Claims of judicial supremacy and sometimes even exclusiveness are widespread in scholarly statements and popular understandings. The extent to which such impressions are justifiable continues to give rise to sharp controversy.

Marshall's claims about judicial competence and authority were closely tied to a tripartite theory of government reflecting the separation of powers. He did not deny that other branches, including the President in the exercise of the veto power and Congress in enacting legislation, could and—under the oath to support the Constitution emphasized in Marbury itself—presumably must consider issues of constitutionality. Marshall's argument that courts also have competence to take the Constitution into account in their work was essentially a "me too" position. Modern variants on justifications for judicial review—and a number of statements from the modern Supreme Court itself—lend stronger support than anything in Marshall's reasoning to a "me superior" or even a "me only" view.

Nearly from the beginning, Presidents have taken issue with Supreme Court rulings. thomas jefferson insisted that "nothing in the Constitution has given [the judges] a right to decide for the Executive, more than to the Executive to decide for them." And he argued that considering "the judges as the ultimate arbiters of all constitutional questions" was "a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy." Similarly, andrew jackson insisted, in vetoing the bill to recharter the Bank of the United States in 1832, that mcculloch v. maryland (1819) did not preclude his action: "Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled." Similar statements are found in the utterances of later Presidents, from Abraham Lincoln to franklin d. roosevelt and beyond.

John Marshall was no doubt unhappy with the political statements of Jeffersonians and Jacksonians. Clearly, he would have preferred ready acceptance of his Court's glosses on the Constitution by all governmental officials and the entire nation. But nothing in the stances of the leaders of his day or since was in sharp conflict with anything in Marbury v. Madison. Jefferson, Jackson, and their successors did not deny the binding effect of the judges' constitutional rulings in the cases before them. But the Presidents insisted on their right to disagree with the principles underlying the Court decision. As Lincoln said in the course of his debates with stephen a. douglas, he did not propose that after Dred Scott had been held to be a slave by the Court—in dred scott v. sandford (1857)—"we, as a mob, will decide him to be free." But, he added, "we nevertheless do oppose that decision as a political rule which shall be binding on the voter, to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision. [We] propose so resisting it as to have it reversed if we can, and a new judicial rule established upon this subject."

Does it follow that, if such presidential statements are consistent with Marbury v. Madison, the scheme sketched by Marshall in 1803 contemplated never-ending chaos—a state of chaos in which the political branches of the national government, and the states as well, might forever disagree with the principles of Supreme Court decisions, in which the only way to implement the Court's principles would be to bring the resisting parties to court in multiple lawsuits, in which no constitutional question would ever be settled? Not necessarily, and certainly not in American experience. Judicial review has not meant that the Supreme Court's reasoning ends all constitutional debate, but neither has it meant endless litigation and dispute over every constitutional issue. Yet the reasons for the growing role of the Supreme Court in settling constitutional issues rest less on any legal principle underlying judicial review than on considerations stemming from institutional arrangements and from prudence. The only arguable basis in Marbury itself for viewing the courts as the ultimate arbiters of constitutional issues is Marshall's ambiguous statement that it is "emphatically the province and duty of the judicial department to say what the law is." That statement establishes judicial competence, as noted; but its ambiguity also may provide the basis for arguments for a special judicial expertise in constitutional matters and for a de facto judicial supremacy. Marshall's statement is not so strong, however, as a similar one from Hamilton, in The Federalist #78: "The interpretation of laws is the proper and peculiar province of the courts."

The widely observable phenomenon that a Court interpretation of the Constitution has significance beyond the parties to a particular lawsuit rests on other, stronger bases. A central one is that, to the extent a disputed constitutional issue arises in a lawsuit, and to the extent that the Supreme Court is the highest court in the judicial hierarchy, a Supreme Court interpretation is final. Technically, it is final only with respect to the parties in the case, to be sure; but the Court gives general reasons in resolving specific controversies, and the Justices normally operate under a system of precedent and stare decisis. Similarly situated parties not before the Court in the particular case ordinarily recognize that, other things being equal, the Court will adhere to precedent, will apply the same rule to them if litigation ensues, and accordingly choose not to engage in needless litigation.

Basically, then, the reason that the courts generally and the Supreme Court in particular wield such vast influence in Americans' understanding of their Constitution is that most constitutional issues can and do arise in lawsuits; and once they do, the courts, with the Supreme Court at the apex, do have the final say. As a result, most potential opponents of Court rulings follow the course implied in Lincoln's First Inaugural Address. Lincoln did not deny that Supreme Court decisions "must be binding in any case upon the parties to a suit as to the object of that suit" and "are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government." He added: "And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with a chance that it may be overruled or never become a precedent for other cases, can better be borne than could the evil of a different practice." From that position, Herbert Wechsler's rhetorical question plausibly follows: When the chance that a judicial ruling "may be overruled and never become a precedent for other cases … has been exploited and has run its course, with reaffirmation rather than reversal of decision, has not the time arrived when its acceptance is demanded, without insisting on repeated litigation? The answer here, it seems to me, must be affirmative, both as to a necessary implication of our constitutional tradition and to avoid the greater evils that will otherwise ensue." Wechsler's admonition, it should be noted, is one of prudence, not of any necessary legal mandate stemming from the Marbury rationale.

Beginning in the late twentieth century, however, the Supreme Court has repeatedly claimed a greater import for its exercises of judicial review than anything clearly set forth in Marbury. A major example came in one of the cases stemming from the school desegregation controversy, cooper v. aaron (1958). The opinion in that case, signed by each of the Justices, provides the strongest judicial support for a view widely held by the public—that the Court is the ultimate, the supreme interpreter of the Constitution. Rejecting the premise of the actions of the legislature and of the governor of Arkansas in that case—that they were not bound by the ruling in brown v. board of education (1954)—the Court purported to "recall some basic constitutional propositions which are settled doctrine." The Justices quoted Article VI and Marshall's "province and duty of the judicial department" passage inMarbury and added: "This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution. [It] follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Article VI of the Constitution makes it of binding effect on the States. [Every] state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Article VI, 3, "to support this Constitution."

Similar statements have surfaced in other controversial cases in recent years, especially in baker v. carr (1962) (referring to the "responsibility of this Court as ultimate interpreter of the Constitution") and powell v. mccor-mack (1969) ("[It] is the responsibility of this Court to act as the ultimate interpreter of the Constitution. Marbury v. Madison. "). The Court in these cases was no doubt marshaling all possible rhetorical force in efforts to ward off actual or potential resistance from the states or from other branches of the federal government; but these broad modern assertions no doubt also reflect widespread popular understandings of the "ultimate" role of the Court, understandings bolstered by the nation's general acceptance of that role, despite frequent and continuing disagreements with particular decisions.

From the relatively modest assertions of the judicial review power in Marbury v. Madison, nearly two centuries of history have brought the Court increasingly close to the self-announced dominant role in constitutional interpretation it set forth in Cooper v. Aaron. That does not mean that Supreme Court interpretations are entitled to immunity from criticism, popular or academic. Nor does it signify the end of all political restraints on the Court, restraints stemming from the same Constitution that Marshall relied on in defending judicial review. Judges may be subjected to congressional impeachment and Congress may arguably curtail the federal courts' jurisdiction in constitutional cases. (See judicial system.) But both weapons, though frequently brandished, have rarely been used. Moreover, the constitutional amending process, albeit difficult to invoke, is available to overturn unpopular Court rulings. More significant, the composition of the Court as well as its size rest with the political branches, and the President's nominating role, together with the Senate's in confirmation, have been major safeguards against judges deviating too far from the national consensus. Despite these potential and actual checks, however, the Supreme Court's role in American government has outgrown both the view that it is the weakest branch and Marshall's own delineation of the judicial review power. What alexis de tocqueville recognized over a century and a half ago has become ever more true since he wrote: "Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate."

Even though historical exercises of judicial review and popular acquiescence have largely stilled the outcries that the federal courts usurped the power to consider the constitutionality of legislation, the core arguments on behalf of the legitimacy of judicial review, summarized by Marshall in Marbury v. Madison, continue to generate controversial implications. Two especially important and recurrent modern debates involve arguments reaching back all the way to Marbury. The first issue is whether courts should strain to avoid decisions on controversial constitutional issues by invoking such devices as the political question doctrine. The second issue concerns the proper sources of constitutional adjudication: Must courts limit themselves to "interpretation" of the Constitution, or are "noninterpretive" decisions also legitimate?

Courts confident about the legitimacy of judicial review may tend to exercise that power assertively; judges in doubt about the underpinnings of that authority may shrink from exercising the power to invalidate legislative acts and may indeed seek to escape altogether from rulings on the merits in constitutional cases. The connection between views of legitimacy and modern exercises (or nonexercises) of judicial review is illustrated by an exchange between learned hand and Herbert Wechsler. Hand insisted that there was "nothing in the United States Constitution that gave courts any authority to review the decisions of Congress" and that the text "gave no ground for inferring that the decisions of the Supreme Court [were] to be authoritative upon the Executive and the Legislature." He found the sole justification for judicial review in the practical need "to prevent the defeat of the venture at hand"—to keep constitutional government from foundering. Wechsler retorted: "I believe the power of the courts is grounded in the language of the Constitution and is not a mere interpolation."

These contending positions have contrasting implications. Thus, Hand concluded that "since this power is not a logical deduction from the structure of the Constitution but only a practical condition upon its successful operation, it need not be exercised whenever a court sees, or thinks it sees, an invasion of the Constitution. It is always a preliminary question how importunately the occasion demands an answer." Wechsler countered that there was no such broad discretion to decline constitutional adjudication in a case properly before a court: "For me, as for anyone who finds the judicial power anchored in the Constitution, there is no such escape from the judicial obligation; the duty cannot be attenuated in this way." (That "duty," he cautioned, was "not that of policing or advising legislatures or executives," but rather simply "to decide the litigated case [in] accordance with the law.")

It is true that courts do often abstain from deciding constitutional questions pressed upon them. There is no question about the legitimacy of that phenomenon to the extent that courts rely on nonconstitutional, narrower grounds of decision in disposing of a case. Nor is there any doubt that courts need not—and under the Marbury rationale may not—decide constitutional issues if they are not properly presented in a case because, for example, the litigation does not square with the case and controversy requirement of Article III. But twentieth-century courts have occasionally gone beyond such justifiable abstentions to claim a more general and more questionable authority to resort to considerations of prudence in refusing to issue rulings on the merits even though a case falls within the contours of Article III and even though congressional statutes appear to confer obligatory jurisdiction on the courts.

Some commentators have defended judicial resort to the "passive virtues"; others have attacked such refusals to adjudicate as often unprincipled and illegitimate. The controversy about the political question doctrine is illustrative. To the extent that the doctrine rests on constitutional interpretation, as it does under its strand regarding what the Court in Baker v. Carr (1962) called "a textually demonstrable constitutional commitment of the issue to a coordinate political department," it is undoubtedly legitimate. But the courts have often gone beyond that concern to refuse adjudication on the ground of a lack of judicially "manageable standards" and on the basis of even broader, wholly prudential considerations as well. Wechsler argued that, in political question cases, "the only proper judgment that may lead to an abstention from decision is that the Constitution has committed the determination of the issues to another agency of government than the courts. [What] is involved is in itself an act of constitutional interpretation, to be made and judged by standards that should govern the interpretive process generally. That, I submit, is toto caelo [by all heaven] different from a broad discretion to abstain or intervene." alexander m. bickel strongly disagreed, insisting that "only by means of a play on words can the broad discretion that the courts have in fact exercised be turned into an act of constitutional interpretation." He saw the political question doctrine as something different from the interpretive process—"something greatly more flexible, something of prudence, not construction and not principle."

To the extent that the Supreme Court rests largely on discretionary, prudential concerns in refusing to adjudicate—as, for example, it appears to have done in holding federalistic restraints on congressional power largely nonjusticiable in garcia v. san antonio metropolitan transit authority (1985)—it raises questions of legitimacy under Marbury v. Madison. Courts deriving their authority from a premise that the Constitution is law, as the Marbury argument does, are not authorized to resort to discretionary abstention devices not justified by law. As Marshall himself pointed out in cohens v. virginia (1821): "We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." But discretionary devices of self-limitation have become commonplace in judicial behavior, as a result of glosses articulated by modern judges rather than because of anything in the Constitution itself or in Marshall's reasoning. (See comity.)

There is a second modern issue, especially pervasive and controversial, in which the rationale of Marbury v. Madison affects debates about judicial review: Are the courts bound to limit themselves to "interpretations" of the Constitution in exercising judicial review? Marshall's reasoning in Marbury suggests that "noninterpretive" rulings are illegitimate. A justification that derives judicial review from the existence of a written constitution and from the premise that the Constitution is a species of law implies that the courts are confined by the Constitution in delineating constitutional norms. And courts indeed almost invariably purport to rest their constitutional rulings on "interpretations" of the basic document.

But modern academic commentary is sharply divided on this issue. Most scholars who insist on "interpretation" as the sole legitimate ingredient of constitutional rulings do not argue for a narrow, strict interpretation based solely on a literal reading of the constitutional text or a specific basis in the Framers' intent. But their "broad interpretivist" position does insist that constitutional rulings must rest on a clear nexus to—and plausible inference from—the Constitution's text, history, or structure. The "noninterpretivist" critics of that position emphasize the many opaque and open-ended phrases in the Constitution and the changing interpretations of these phrases over the years. They claim that the Court's behavior cannot be squared with even a broad interpretivist position and argue that the Court has always relied on extraconstitutional norms. These critics insist that "noninterpretivist" decision making is justified not only by the history of the Court's elaborations of such vague yet pervasive concepts as substantive due process but also by the appropriate role of courts in American constitutional democracy. The noninterpretivist literature accordingly abounds with suggestions of sources courts might rely on in the search for fundamental, judicially enforceable values—sources that range from moral philosophy to contemporary political consensus and analogies to literary and scriptural analyses.

The interpretivist arguments that draw in part on Marshall's justification for judicial review have difficulty explaining the Court's performance in "reinterpreting" the Constitution in light of changing societal contexts. The noninterpretivist position has difficulty squaring its arguments with the Marbury view of the Constitution as a species of law. That position has difficulty as well in articulating limits on the legitimate ingredients of constitutional decision making that safeguard adequately against excessive judicial subjectivism—against the specter reflected in Learned Hand's fear of being "ruled by a bevy of Platonic Guardians." Whether constitutional decision making by judges can continue to contribute to the flexibility and durability of the Constitution without deteriorating into merely politicized and personalized rulings that risk subverting the legitimacy of constitutional government is the central and unresolved challenge confronting modern judicial review.

Gerald Gunther
(1986)

(see also: Interpretivism; Noninterpretivism.)

Bibliography

Bickel, Alexander M. 1962 The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Indianapolis: Bobbs-Merrill.

Ely, John H. 1980 Democracy and Distrust: A Theory of Judicial Review. Cambridge, Mass.: Harvard University Press.

Grey, Thomas 1975 Do We Have an Unwritten Constitution? Stanford Law Review 27:703–718.

Gunther, Gerald 1964 The Subtle Vices of the "Passive Virtues": A Comment on Principle and Expediency in Judicial Review. Columbia Law Review 64:1–25.

Hand, Learned 1958 The Bill of Rights. Cambridge, Mass.: Harvard University Press.

Hart, Henry M., Jr. and Wechsler, Herbert 1973 Pages 1–241 in Paul Bator, Paul Mishkin, David Shapiro, and Herbert Wechsler, eds., The Federal Courts and the Federal System, 2nd ed. Mineola, N.Y.: Foundation Press.

Levy, Leonard W. 1967 Judicial Review, History, and Democracy: An Introduction. Pages 1–42 in Leonard W. Levy, ed., Judicial Review and the Supreme Court: Selected Essays. New York: Harper & Row.

Mc Closkey, Robert G. 1960 The American Supreme Court. Chicago: University of Chicago Press.

Mc Laughlin, Andrew C. 1935 A Constitutional History of the United States. New York: Appleton-Century-Crofts.

Perry, Michael J. 1982 The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary. New Haven, Conn.: Yale University Press.

Wechsler, Herbert 1961 Principles, Politics, and Fundamental Law. Cambridge, Mass.: Harvard University Press.

——1965 The Courts and the Constitution. Columbia Law Review 65:1001–1014.

Judicial Review

BIBLIOGRAPHY

Judicial review is the legal principle that recognizes the power of courts to declare an act of Congress or the president unconstitutional. This power was most firmly established in the 1803 U.S. Supreme Court case of Marbury v. Madison. In a larger sense, the case exemplifies the uncertainties of litigation and how law evolves in a democratic form of government. It was the uncertainty embedded in litigation that prompted Supreme Court Justice Oliver Wendell Holmes (1841–1945) to declare that the object of the law is prediction when he stated that: “the prophecies of what the courts will do in fact, and nothing more pretentious are what I mean by the law” (1897, p. 461). In the American judicial system, what courts will do in fact about legal controversies brought before them will necessarily differ and possibly evolve from one case to another depending upon the facts and circumstances surrounding each case. Although the Framers conceived of the judiciary as the “least dangerous branch” insofar as the constitutional rights of the people are concerned, many now believe that this claim no longer rings true because they see the Supreme Court as the most powerful of the three stations of constitutional power in U.S. government. For the most part, the Court owes its current power and high status to the principle of judicial review.

The story of the origin of modern judicial review started in earnest with the presidential election of 1800 between the incumbent president John Adams (1735–1826) and the challenger Thomas Jefferson (1743–1826). That contest produced no clear winner after all Electoral College votes were counted. In that situation, the U.S. Constitution requires the House of Representatives to settle the election by choosing the president and vice president. During the month of February 1801, after much debate in Congress, Thomas Jefferson was selected president and Aaron Burr (1756–1836) vice president. Because the Federalist Party (the modern-day Democratic Party) had lost control of Congress and the presidency, the outgoing president, John Adams, proposed and Congress approved the Circuit Court Act of 1801, which authorized six new circuit courts and several district courts to accommodate the new states of Kentucky, Tennessee, and Vermont. This bill guaranteed the Federalists temporary control over the judiciary. During his final six months in office, John Adams submitted well over two hundred nominations to Congress, with sixteen judgeships approved by the Senate during his last two weeks in office.

One of the most important developments that took place during this transition period was that Federalist Oliver Ellsworth (1795–1800) resigned his position as chief justice of the Supreme Court, giving Adams an opportunity to name a Federalist successor. Adams immediately turned to former Chief Justice John Jay (1745–1829), who had resigned to become the governor of New York. Jay refused to return to the center chair. Then Adams turned to his secretary of state, John Marshall (1755–1835). Marshall accepted the appointment and was quickly confirmed by the Senate in January 1801 while he was still serving as secretary of state.

In addition to the Circuit Court Act, the Federalist Congress enacted the Organic Act, authorizing the president to appoint forty-two justices of the peace in the District of Columbia. The men Adams chose to fill these positions were called “midnight appointees,” and virtually all were Federalists. It is noteworthy that this seemingly trivial act would set the stage for the most dramatic event that led to the Court’s decision in Marbury v. Madison, the case that firmly established the doctrine of judicial review.

During the last days of John Adams’s administration, there was a sudden rush to clean house in preparation for the new administration’s arrival. As a result, Secretary of State John Marshall neglected to deliver some of the commissions for justice of the peace. If he had not neglected this duty, the ensuing controversy would have been avoided. One of these commissions belonged to William Marbury, a resident of the District of Columbia. When the new administration assumed power, Thomas Jefferson was displeased with his predecessor’s blatant effort to pack the judiciary with Federalist loyalists. Therefore, he ordered his secretary of state, James Madison (1751–1836), not to deliver the commissions. Determined to obtain their commissions, Marbury and three others went directly to the Supreme Court. They invoked the Court’s original jurisdiction powers and requested a writ of mandamus, which is an order that would require a government official (in this case, the secretary of state) to perform a government function (e.g., deliver the commissions). The case was placed on the Court’s docket for the 1802 term. But while the case was pending, the new Republican majority in Congress decided to eliminate the entire 1802 Supreme Court term out of anger toward the actions of a lame-duck president, and so the decision in Marbury v. Madison was postponed until February 24, 1803.

This case presented John Marshall and the Supreme Court with a daunting predicament. Should the Supreme Court issue the writ of mandamus? What if the writ were issued and President Jefferson (through his secretary of state) refused to honor it? These were important questions requiring careful deliberation. Certainly the potential institutional consequences for the Supreme Court could be disastrous if the Court made the wrong choice. The balance of power in the government would be dramatically altered and the Court would suffer further diminished influence in the current and future affairs of government. Worse still, Jefferson and subsequent presidents could play fast and loose with the Constitution by assuming an inherit authority to act as they pleased without the watchful eye of the Court.

One can think of this case as a game of strategy. Both the Court and the president had real choices to make and each choice presented a real consequence. Since the Supreme Court had to make a decision after receiving the case, it got to move first in the game. The Court had to decide whether to issue the writ or not. If the Court chose to issue the writ, President Jefferson would probably choose not to honor it, precipitating a constitutional crisis. In this outcome, the Court would be severely weakened since it would lack the power to enforce its own decisions. If Jefferson honored the writ, however, that choice would be viewed as an embarrassing defeat for him and his administration. His power of persuasion would be damaged. Neither of these two possible scenarios—the Court’s choices or the president’s—sounded promising.

If, on the other hand, the Supreme Court failed to issue the writ, it would be viewed as weak by members of the Federalist Party in Congress and Marshall’s reputation within the party would be severely tarnished. The remaining decisional choice was for the Court to declare the law authorizing William Marbury’s legal request unconstitutional. The Court settled for this option, thereby avoiding a constitutional confrontation with the president. By declaring a federal law null and void for the first time, the Supreme Court firmly ushered in judicial review and sent a clear message that it stood ready to assert itself as an independent and coequal branch of the federal government. Historians of the Marbury affair consider the Court’s decision something of sheer genius, although by all practical purposes it is possible that both the Supreme Court and the president were merely reacting rationally based upon information available to them.

How did John Marshall and the Supreme Court reach that decision? Analysis of the opinion suggests that the Court addressed three interrelated questions raised in the case. First, was William Marbury legally entitled to the commission? The Court answered yes, noting that the commission was indeed signed by the president; hence the appointment was made and it was completed when the secretary of state affixed a seal of the United States. Marbury therefore suffered a legal injury and as a matter of right was entitled to the commission. Second, did the law afford Marbury a remedy for his claim? Yes. Failing to offer Marbury an appropriate remedy would amount to a plain violation of his right under the Constitution. Finally, was that remedy a mandamus issued by the Supreme Court? The Court said no. Even though the Judiciary Act of 1789 authorized the Court to issue a writ of mandamus to “persons holding office, under the authority of the United States,” the Court lacked the proper jurisdiction to issue a writ of mandamus because Section 13 of that Act provides an unconstitutional grant of original powers to the Supreme Court. Article III of the U.S. Constitution specifies in full the original jurisdiction powers of the Supreme Court. To alter that constitutional grant of power requires a constitutional amendment, not a congressional statute.

Judged under proper standards of ethical behavior, it seems that Marshall should have exempted himself from participating in this case since his own absent-mindedness precipitated the conflict in the first place. Although the law creating the vacancies for justice of the peace was later repealed by the anti-Federalist Congress, its legacy has lived and will continue to live on for generations to come.

The significance of Marbury v. Madison is that it declared an act of Congress unconstitutional, thereby affirming judicial review and independence. But the idea of judicial review itself was neither new nor born in that case. For instance, in 1795, eight years before the Marbury decision came down, there was a glimpse of the Court’s thinking on the issue of judicial review in the case of Van Horne’s Lessee v. Dorrance. In that case, Justice William Paterson (1745–1806) explained that in the American form of government, the “Constitution is the sun of the political system, around which all Legislative, Executive, and Judicial bodies must revolve. Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the Legislature, repugnant to the Constitution, is absolutely void” (The Supreme Court of the United States 1992, p. 18). It was the principle elegantly expressed by Justice Paterson that Marbury v. Madison confirmed and later institutionalized as the most wide-ranging grant of power to the American judiciary.

Since Marbury’s decision came down, the Supreme Court has relied on its power of judicial review to redefine the institutional relationships between the three branches of government, as well as the power-sharing relationships between the states and federal government. Most observers think judicial review has been a success. And this can be seen in part by the adoption of judicial review by emerging and even well-established democracies. In 2004, for example, an independent judiciary with the power of judicial review in Ukraine nullified a widely perceived fraudulent presidential election. In South Africa, Ecuador, and many other young democracies, judicial review has been adopted as an institutional reform to bring about a sense of permanence and stability to their governments. Clearly, these countries have seen the benefits of judicial review in the United States and other established democracies, such as Germany, Japan, and Spain.

SEE ALSO Activism, Judicial; Bill of Rights, U.S.; Electoral College; Judiciary; Supreme Court, U.S.

BIBLIOGRAPHY

Clinton, Robert Lowry. 1994. Game Theory, Legal History, and the Origins of Judicial Review: A Revisionist Analysis of Marbury v. Madison. American Journal of Political Science 38: 285–302.

Epstein, Lee, and Thomas G. Walker. 2004. Constitutional Law for a Changing America: Rights, Liberties, and Justice. 5th ed. Washington DC: CQ Press.

Haskins, George L., and Herbert Johnson. 1981. Foundations of Power: John Marshall, 1801–1815. New York: Macmillan.

Holmes, Oliver Wendell. 1897. The Path of the Law. Harvard Law Review 10: 457.

The Supreme Court of the United States: Its Beginnings and its Justices, 1790–1991. 1992. Washington, DC: Commission on the Bicentennial of the United States Constitution.

Isaac Unah

Judicial Review

In its most sweeping form, judicial review is the power of a court of law to nullify laws passed by legislatures and administrative decisions made by government agencies. Generally, courts review and assess the laws and decisions made by other government policymakers with reference to higher principles defined in a political system's constitution. Because a constitution is considered the fundamental law of a specific polity, judicial review allows courts in that political system to determine whether laws and policies fit with constitutional principles.

Judicial review was first consistently, and perhaps effectively, put into practice in the United States. In 1803 the U.S. Supreme Court declared in the famous Marbury v. Madison case that the U.S. Constitution is a fundamental and higher law, and as such, it governs all subsequent laws and government action. As Chief Justice John Marshall (1755–1835) wrote in Marbury, "Those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void. This theory is essentially attached to a written Constitution" (Marbury v. Madison 1803). Chief Justice Marshall further noted that since the Constitution is the fundamental law of the American political system, and it is "emphatically the province and duty of the Judicial Department to say what the law is," courts therefore have the power to declare laws and government policies unconstitutional.

The U.S. Constitution and the Supreme Court did not create judicial review out of thin air, however. It had its genesis in an understanding of a constitution as a higher law that established the basic political principles governing a society. Edwin S. Corwin traces this "higher law" conception of a constitution from Greek and Roman political thought through the Magna Carta in England in 1215, which established limits on the power of the English monarch, to the development of the common law in England, and finally to Enlightenment political thinkers such as John Locke. Thus, judicial review in the American context builds on centuries of political and legal thought in which the notion that government is limited by higher constitutional principles was slowly developed. Although judicial review was not explicitly written into the Constitution of 1787, the Supreme Court's announcement in 1803 that it did have the power of judicial review has essentially been accepted as a basic tenet of American constitutionalism. Approximately two hundred years of political and constitutional history indicate that judicial review is now deeply ingrained in American constitutional law and practice, regardless of its absence in the text of the Constitution itself.

Other nations have adopted judicial review, and in some instances have used the American model as either something to imitate and copy, or as something to avoid. Indeed, the power created by the Supreme Court in 1803 is now very evident 200 years later in other industrialized (or modernizing) democracies around the world. For example, Mauro Cappelletti recounts that judicial review was added to the Austrian Constitution in 1920, the post–World War II (1939–1945) German, Italian, and Japanese constitutions, and in the modern Australian, Indian, and Canadian constitutions of the twentieth century. France adopted a type of judicial review in its Constitutional Council with the Fifth Republic. The adoption of judicial review in West Germany and Japan after World War II was heavily influenced by the American oversight of drafting new constitutions for the two defeated powers, the former Nazi regime of Germany, and the imperial government of Japan. But the example of judicial review in Marbury v. Madison was not exactly followed by other nations, many of whom opted to spell out the power of judicial review in their respective constitutional documents. Article 93 of the German Basic Law, for instance, states that the Federal Constitutional Court will decide "on the interpretation of the Basic Law" in several different types of cases, from those concerning the constitutional powers of the German federal government to cases concerning the constitutional rights and liberties of German citizens. That the German Constitution locates constitutional judicial review solely in the Federal Constitutional Court points to yet another difference in judicial review among nations: that of centralized or decentralized review.

decentralized judicial review

Decentralized review is often called the "American model" of judicial review. In essence, judicial review can be exercised by all federal and state courts in the United States, and is not limited to the Supreme Court. Although the Supreme Court is the highest court in the judicial system, and thus its pronouncements in judicial review cases are the final word, all courts are equally capable of deciding judicial review claims concerning the constitutionality of government action at the federal, state, and even local levels. Thus, the power of courts to decide constitutional cases is diffused throughout the United States, and no one court has sole authority over constitutional questions. Judicial review over constitutional issues is thus seen as one of many types of legal disputes that courts can decide. In that sense, courts in the United States are "generalist" and do not specialize in certain types of cases. With decentralized review, courts throughout a political system may exercise review and decide constitutional disputes concerning governmental laws and power. A court's constitutional decisions may progress up through several levels of review by appellate courts. In the American political system, constitutional disputes may ultimately be appealed to the Supreme Court, and if the high court accepts a case for review, its interpretation of the Constitution in that dispute will be considered final and authoritative, so that all lower courts will be bound by it.

Other countries have judicial review similar to the American model. Canadian courts, for instance, are generally capable of addressing judicial review and constitutional issues. The Canadian Supreme Court serves as the final court over constitutional matters, similar to the U.S. Supreme Court. Sweden and Norway have decentralized judicial review systems, too, with their Supreme Courts also having the final say on constitutional issues.

The adoption of judicial review has become common among new democracies (nations that were not democratic in 1986, but had become democratic by 2000). Thirty-two new democracies had adopted new constitutions that provided for decentralized judicial review (eight of the thirty-two also adopted some form of centralized judicial review) and six more had adopted a limited form of judicial review by judges.

centralized judicial review

Centralized review is sometimes referred to as the Austrian model of review, because it was first put into place in the Austrian Constitution of 1920. Austrian legal scholar Hans Kelsen proposed locating judicial review in one specific court, instead of several courts, and centralized judicial review is also often called the Kelsenian model of review. The main distinction between decentralized and centralized judicial review is that in decentralized systems most, if not all, courts exercise judicial review under the watchful eye of one supreme court, and in centralized systems only one specific court addresses constitutional disputes under judicial review. Centralized judicial review is mainly found in European legal systems that are based on Roman, or civil, law. In such systems courts are often specialized and adjudicate only certain types of legal disputes. For example, labor law disputes are adjudicated by labor courts, family law disputes by family law courts, and so forth. Courts in Roman law systems tend not to be generalist.

In centralized judicial review systems the court with the exclusive power to decide constitutional disputes is commonly termed a constitutional court. For example, the German Federal Constitutional Court has exclusive power over constitutional disputes. Whenever a constitutional dispute is raised in a lower German court, that dispute will be sent up to the Federal Constitutional Court for a decision; the lower court will not decide the dispute itself. Centralized review generally means that the court charged with deciding constitutional disputes will normally be a highly specialized court that devotes all its attention to constitutional issues. In decentralized systems courts exercising constitutional judicial review are generalist and decide all types of legal disputes, including all those related to the constitution. Other European nations have constitutional courts similar to the German Constitutional Court that exercise centralized judicial review. The Italian Constitutional Court was created in the 1947 Italian Constitution and began operation in 1956. The Spanish Constitutional Tribunal was created in the post-Franco 1978 Constitution and started operating in 1980. The French Constitutional Council was established in the 1958 Constitution of the Fifth Republic.

Thirty-one new democracies adopted constitutions providing for centralized judicial review by a constitutional court (eight of the thirty-one also provided for some forms of decentralized judicial review) and thirteen more had adopted limited centralized judicial review.

concrete and abstract judicial review

Yet another distinction among courts with the power of judicial review concerns concrete and abstract judicial review. Concrete judicial review is exercised only in the context of a genuine, adversarial legal dispute. Abstract judicial review occurs when a court gives its advice on the constitutionality of a specific law or government policy at the request of another government agency or other entity in a political system. That advice is usually not legally binding; it is essentially that court's answer to a question on how a constitution should be interpreted within a specific context.

Concrete judicial review is part and parcel of the American model of review. Article III of the U.S. Constitution mandates that federal judges shall decide "cases and controversies" arising under the Constitution, and the Supreme Court early in its history determined that cases or controversies mean adversarial legal disputes in which two or more parties present a contentious legal dispute to a court for resolution. Concrete judicial review arises in the context of a lawsuit in which one party sues another party in a court of law and asks a court to render a decision based on the law to settle the dispute.

Abstract judicial review, conversely, allows courts to address hypothetical constitutional quarrels. By way of example, Article 93 of the German Basic Law instructs the Constitutional Court to decide constitutional questions "in case of differences of opinion or doubts on the formal … compatibility of federal law … with the Basic law." The Court's review can be requested by the federal government, a Länder (state) government, or one-third of the members of the Bundestag, the national parliament. Abstract constitutional review allows government agencies to ask a constitutional court for its advice on the constitutionality of a law or government policy, and in some political systems that advice can be sought while a bill is still pending in a legislature and not yet formally a law. When a court exercises abstract review of a law, the legislature may often go through a "corrective process" through which the constitutional problems with the law are corrected. In some instances in Germany, for example, the Bundestag has been known to simply rewrite legislation by directly incorporating the Constitutional Court's abstract opinion on that law, thus allowing the court to effectively write the law in constitutional form. As some scholars note, when constitutional court judges exercise abstract review, especially in the context of reviewing pending legislation in a national parliament, they effectively become legislators themselves. Indeed, abstract judicial review requires courts and judges to become participants in the political process in a way that judges exercising concrete review do not.

john locke (1632–1704)

An eminent British philosopher, John Locke was born near Bristol, England, in 1632. He was educated at Oxford University, earning a bachelor's degree in 1656 and a master's in 1658. He also completed a medical degree in 1674, although he never became a practicing physician. He did, however, serve as personal physician to the Earl of Shaftesbury and was drawn into politics when Shaftesbury became Lord Chancellor. Locke left England because of poor health in 1675 and did not return permanently until 1689. Most of his writings were published between 1690 and his death in 1704.

Locke's best-known political work is the Two Treatises on Government, published in 1690. Locke began his analysis of the powers and limitations of civil government by defining certain basic rights as natural to humans. That is, these rights belong to human beings as such rather than being granted as privileges by the state. The state therefore has a duty to respect and protect these fundamental rights, and its constitution can be measured against the higher standards of this natural law.

Thomas Jefferson and the other framers of the U. S. Constitution were deeply influenced by Locke's thought, particularly the notion of a higher law—natural law rather than divine revelation—limiting government power. The practice of judicial review in the American legal system has been traced to Locke's concept of natural law.

judicial review and the problem of democracy

Alexander Bickel, noted scholar of the U.S. Supreme Court, argued that judicial review "thwarts the will of representative[s] of the … people" and is thus a "counter-majoritarian force" in our political system and will "have a tendency over time to seriously weaken the democratic process" (Bickel 1962, pp. 16–17). Bickel was one of many who identified that judicial review may be antidemocratic. Lawmaking and policy making in democracies are premised on popular sovereignty and the will of the people, and allowing unelected judges to overturn acts of the people interferes with democratic governance.

Systems of judicial review respond differently to the antidemocratic nature of the power of courts to declare democratically passed laws unconstitutional. In the American context, the Supreme Court historically maintains that the Constitution is a "higher law" under which all other laws and policies are to be governed. Judges interpret and apply the higher law, as that is part of their job. The higher-law logic of judicial review guides and justifies, at least in the eyes of judges, the antidemocratic nature of judicial review.

Nations adopting judicial review in the modern era have often created safeguards to dampen its antidemocratic nature. With the Charter of Rights and Freedoms in 1982, Canada added an entrenched bill of rights to its constitution that judges could interpret and apply against government laws and policies. However, Section 33 of the Charter mandates that the national or provincial legislatures "may expressly declare" that a national or provincial law "shall operate notwithstanding a provision included" in the Charter of Rights and Freedoms. Thus, national and regional legislatures in Canada can in principle override certain constitutional provisions by regular legislation, at least for a period that cannot extend beyond five years. Judicial decisions on the Charter can also be overridden by legislatures under Section 33. Not all rights and freedoms in the Charter can be superseded, but what Section 33 does is allow the democratic lawmaking process to supplant the higher law and judicial interpretations of it in judicial review cases.

In the German Basic Law, the ability of the Constitutional Court to override political majorities in national or regional legislatures was factored into the structure of the Court itself. Although the German Constitutional Court's sole function is to interpret the constitution, its judges are not insulated from the political process. German Constitutional Court judges are elected by the two houses of the national Parliament: the Bundestag, which is popularly elected, and the Bundesrat, which represents the Läander or the states. Political parties in the Bundestag and state governments through the Bundesrat play a significant role in electing judges. Thus, the democratic process elects judges who exercise judicial review and in a real sense legitimizes the Constitutional Court's ability to say no to the will of the people. Moreover, unlike U.S. federal judges who are appointed for life, German Constitutional Court judges serve fixed terms of twelve years. The term limit safeguards the democratic political process from overzealous judicial review.

The Dutch constitutional system offers yet another solution to the antidemocratic problem of judicial review. In Dutch constitutional law courts interpret and apply domestic and international law. The courts of the Netherlands, a member of the European Union (EU), are responsible for applying EU laws and regulations at the most local level. When Dutch government policies conflict with EU laws and regulations or international treaties, Dutch courts will prefer and apply the transnational law over the domestic policy. The Dutch Constitution specifically prohibits courts from reviewing the constitutionality of acts of parliament. Thus, the democratic process is free to enact any law, and courts are confined to reviewing how government agencies implement policy under those laws.

See also: Kelsen, Hans.

bibliography

Abraham, Henry J. The Judicial Process: An Introductory Analysis of the Courts of the United States, England, and France, 7th ed. Oxford, UK: Oxford University Press, 1998.

Bickel, Alexander. The Least Dangerous Branch. New Haven, CT: Yale University Press, 1962.

Cappelletti, Mauro. The Judicial Process in Comparative Perspective. Oxford, UK: Oxford University Press, 1991.

Corwin, Edwin S. The Higher Law Background of American Constitutional Law. Ithaca, NY: Cornell University Press, 1929/1965.

Ginsburg, Tom. Judicial Review in New Democracies: Constitutional Courts in Asian Cases. New York: Cambridge University Press, 2003.

Jackson, Donald W., and C. Neal Tate. Comparative Judicial Review and Public Policy. Westport, CT: Greenwood Press, 1992.

Jackson, Vicki C., and Mark Tushnet. Comparative Constitutional Law. New York: Foundation Press, 1999.

Kommers, Donald. The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd ed. Durham, NC: Duke University Press, 1997.

Marbury v. Madison, 5 U.S. 137 (1803).

O'Brien, David M. Storm Center: The Supreme Court in American Politics, 6th ed. New York: W. W. Norton, 2002.

John C. Blakeman

JUDICIAL REVIEW

JUDICIAL REVIEW. When a court measures a statute or an executive action against a constitution, treaty, or other fundamental law, judicial review has occurred. The antecedents of modern judicial review were three: first, Edward Coke's opinion in Bonham's Case (1610), in which he declared an act of Parliament to be against "common right and reason" and therefore void; second, the opinions of the British Privy Council finding certain measures of colonial legislatures to have exceeded authorization under their royal charters; and third, early U.S. state government decisions that state statutes exceeded the permissible bounds set forth in the state constitutions. There were also some early state and federal decisions suggesting that even where the state or federal constitutions were silent, certain basic principles of "republican governments" could not be disregarded by legislators, principles that would be grounds for striking down statutes. In Calder v. Bull (1798), Supreme Court Justice Samuel Chase gave examples of the violation of these principles, such as taking one person's property to give to another, deeming an action criminal that was not illegal when committed, and making persons judge and party in their own cases.

Judicial review in America is often dated from John Marshall's opinion in Marbury v. Madison (1803). According to Marshall, a provision of the Judiciary Act of 1789 improperly extended the jurisdiction of the U.S. Supreme Court, and was therefore unconstitutional. This was the first opinion in which the Court exercised judicial review en banc (with full judicial authority). The idea of judicial review had been employed previously by several of the justices, riding circuit, to question both federal and state legislation. In Federalist No. 78, published at the time of the ratification of the U.S. Constitution, Alexander Hamilton asserted the power of judicial review in terms almost identical to those employed by Marshall in Marbury. Opponents of the Constitution believed judicial review gave the justices too much discretion, but Hamilton defended the doctrine by arguing that when the judges struck down a statute on the grounds that it was barred by the Constitution, they were merely fulfilling their task as agents of the American people—the sovereign that dictated the Constitution.

Dred Scott Case and the Fourteenth Amendment

Judicial review was infrequent during the Republic's early years, although in several notable cases, including Fletcher v. Peck (1810), Dartmouth College v. Woodward (1819), and Gibbons v. Ogden (1824), the Marshall Court ruled that state legislatures had exceeded the bounds permitted them under the federal Constitution. Not until the Taney Court decided the Dred Scott Case (1857), however, was a second federal statute ruled unconstitutional. In a 7 to 2 decision, Chief Justice Taney ruled that Congress had no power to forbid slavery in the territories, because the Fifth Amendment to the Constitution barred Congress from taking property without "due process." According to Taney, forbidding slavery amounted to the obliteration of a property interest that could not be "dignified with the name of due process."

At the beginning of the twenty-first century the Dred Scott case is regarded with universal disapprobation. Still, Taney's statement of the proper philosophy of judicial review—that the Court should interpret the Constitution's provisions as they were understood at the time of the Constitution's ratification—has merit and is itself in accordance with the understanding of the framers. Taney's elevation of property rights to the central constitutional concern is also in keeping with the framers' views.

Nevertheless, in Dred Scott, Taney belied his own judicial philosophy when he failed to recognize that at the time of the framing of the Constitution there was a presumption in favor of human freedom and a widespread belief that slavery was contrary to natural law. As such, there was less protection for slavery than for other forms of property, and congressional prohibition of slavery where it had not been established by positive law should have been permissible. Another principal holding of Dred Scott—that even free blacks were not regarded as "citizens" at the time of the ratification of the Constitution—is similarly debatable. Through 2002, Dred Scott continued to be invoked as a symbol of judicial review's excesses.

After the Civil War a series of constitutional amendments were passed, some provisions of which reversed Dred Scott. The Thirteenth Amendment forbade slavery and the Fourteenth Amendment made clear that citizen-ship could not be denied because of race. The Fourteenth Amendment also further circumscribed the powers of state governments by providing that no state could deprive any person of the "equal protection of the laws," take a person's "life, liberty or property without due process of law," or "abridge the privileges and immunities of citizens of the United States." The meaning of these provisions is obscure, but thereafter the Fourteenth Amendment was invoked in the most dramatic instances of judicial review.

The Fourteenth Amendment was intended to improve the lot of the newly freed slaves, but it soon came to be employed in a different context. As states began to impose new forms of economic regulation, many businesses and corporations argued that they possessed Fourteenth Amendment rights that had been infringed. They asserted a "right to contract" that they claimed inhered in the due process provision of the Fourteenth Amendment. Just as Taney believed that a congressional statute that took away a right to property in slaves could not be regarded as due process, so some began to argue that to infringe on the right to contract with one's employees did not meet the requirements of due process. Because this argument did not deal with "process" in its usual sense, it came to be known as substantive due process. This doctrine assumes that there are some subjects on which legislation simply should not be permitted.

A number of Supreme Court decisions found state regulatory legislation unconstitutional. The most famous was Lochner v. New York (1905), in which the Court invalidated, on substantive due process grounds, New York legislation that set maximum hours for bakers. Lochner's majority was chastised by Oliver Wendell Holmes Jr. in a fiery dissent. He claimed that the majority was imposing its own policy preferences on New York, and was reading into the Constitution a particular economic theory which the framers had not intended.

The New Deal

Until 1937 the U.S. Supreme Court continued to employ judicial review in service of a conservative, business-oriented view of the Constitution. When the Great Depression led to federal regulatory efforts of an unprecedented scope, it was inevitable that the Court would be asked to review the constitutionality of these measures. There were a number of decisions, some upholding New Deal legislation. But in the most notable cases, the Court held that Congress's power to regulate interstate commerce was limited and could not be stretched to include manufacturing or processing which took place within a single state. Schechter Poultry Corporation v. United States (1935), for example, invalidated the National Industrial Recovery Act (1933).

Schechter Poultry infuriated President Franklin Roosevelt, who bemoaned the Court's use of a "horse-and-buggy" definition of interstate commerce. Roosevelt challenged the Court's interpretive strategy of defining terms the way they had been understood by the framers, and argued for a dynamic interpretation to fit the Constitution to the needs of the times. Roosevelt, in his fulmination, threatened to pack the court by appointing additional justices sympathetic to his views. But before he could, the Court dramatically changed interpretive course.

The case that demonstrated the Court's interpretive shift most clearly was National Labor Relations Board v. Jones and Laughlin Steel Corporation (1937), in which the Court allowed Congress to use its powers to regulate interstate commerce to create the National Labor Relations Board, with jurisdiction to mandate collective bargaining and union organizing within manufacturing plants. The Court's logic was that a strike at the Pennsylvania steel plant in question might have consequences for interstate commerce and that this possibility permitted federal regulation. This logic could support federal regulation of nearly anything, and was employed until late in the twentieth century. Jones and a number of other cases also rejected the predominance earlier given to freedom of contract, and substantive economic due process died.

The Warren Court

Several striking instances of modern judicial review occurred during the chief justiceship of Earl Warren, who adopted the notion advanced by Franklin Roosevelt that the Constitution ought to be perceived as a "living document." In the landmark case of Brown v. Board of Education of Topeka (1954), the Warren Court announced that constitutional jurisprudence could not "turn back the clock." Warren, writing for a unanimous Court, held that racially segregated schools violated the Fourteenth Amendment's guarantee of equal protection of the laws, and that the practice had to end. There was strong evidence that this had not been the intention of the amendment, but the Court brushed this objection aside. The events Brown set in motion altered racial relations in America forever, and initiated a pattern of judicial activism unlike any other.

The Warren Court embraced earlier decisions which had held, in spite of a paucity of evidence, that the Fourteenth Amendment was intended to extend the Bill of Rights' prohibitions against the federal government to forbid actions by the states. The Court proceeded, wholesale, to refashion state and local government and law enforcement. The Court ruled that state laws requiring compulsory Bible reading or school prayer violated the First Amendment. It decided that the Fourth Amendment's prohibition on unreasonable searches and seizures meant that local law enforcement officials had to follow particular procedures dictated by the federal courts or have the evidence they obtained thrown out of court. The Court read the Fourteenth Amendment's equal protection language to mean that both houses of the state legislatures had to be apportioned on the basis of population, refusing to allow the states to emulate the federal Constitution's model of one chamber determined by population, and another by political subdivision.

Roe v. Wade

For most of the period of the Burger and Rehnquist Courts, much of the reformist zeal of the Warren Court prevailed. In an exercise of constitutional interpretation second in boldness only to Brown, the Court in Roe v. Wade (1973) ruled 7 to 2 that state prohibitions on abortion during the first trimester of pregnancy violated the Fourteenth Amendment's requirement of due process. Thus did substantive due process return, though in neither the property rights guise of Dred Scott or the economic aspect of Lochner.

The audacity of Roe led to an unsuccessful struggle in the legal academy to articulate a theory of judicial review that might reconcile the Court's conduct with Hamilton's idea that judicial review merely carried out the will of the people. Although the Court had been unwilling to overturn Roe, by 2002 it survived by the slimmest of margins. The Warren Court's decisions regarding state-sponsored prayer were generally upheld as late as 2002, with the Rehnquist Court barring officially selected prayers at school graduations and even at football games. Lower federal courts nibbled away at the school prayer decisions at the beginning of the twenty-first century, however, by permitting schools to impose "moments of silence" with prayer among the permitted meditative activities.

The Rehnquist Court

With the landmark case of United States v. Lopez (1995), the Supreme Court, under Chief Justice William Rehnquist, announced for the first time since the New Deal that a federal regulatory measure was not permitted under the commerce clause. Congress had sought to impose federal criminal penalties on those who carried unauthorized firearms in or near any school in the nation. Proponents of the act argued that firearms disrupted education and that the disruption of education would eventually have an adverse affect on interstate commerce. This rationale was no more strained that that which had permitted the Court to allow many New Deal measures, but in a 5 to 4 ruling, the Court decided that to permit this commerce clause argument to prevail in Lopez would be to allow unlimited federal regulation.

A later Rehnquist Court case, United States v. Morrison (2000), applied similar logic to reject some provisions of the federal Violence Against Women Act, holding that basic criminal law enforcement was a matter for the state and local governments rather than the federal government. Lopez and Morrison, and a variety of other cases concerned with the assertion of state sovereign immunity and the prohibition on conscripting state and local officials into federal law enforcement, were perceived in the 1990s as the Rehnquist Court's assertion of a "new federalism." Critics charged that the Court's newly activist conservative majority was bent on construing the Constitution in a manner that sharply restricted what the federal government could do, and threatened its role as the protector of civil rights. The Rehnquist Court's defenders argued that it was returning to a jurisprudence of original understanding, and receding from the wanton readings of the Constitution during the Warren Court years.

But if the Rehnquist Court's new federalism decisions could be defended as an exercise in returning the Constitution to its original scheme, it was difficult to make that argument in support of the Rehnquist Court's most ambitious act of judicial review, in Bush v. Gore (2000). For the first time, the Supreme Court, at the instance of a presidential candidate, held that a state court's interpretation of state election law violated the equal protection clause of the Fourteenth Amendment. Seven justices agreed there was an equal protection violation, but only five concurred in the Court's remedy of barring further ballot recounts in Florida, in effect awarding the presidency to George W. Bush.

In 2001 and 2002, justifications were advanced for what the Court did (most centering around the country's need to put an end to election proceedings that threatened to drag out for months or years). But the Court's equal protection reasoning was dubious and the Court itself took pains to limit its holding to the case at hand. Many sympathetic to the Gore candidacy believed that the Court stole the election for Bush. Not surprisingly, no sooner did the Democrats take control of the Senate in early 2001 than a series of hearings was scheduled on "judicial ideology." Democratic senators were concerned about preserving the legacy of the Warren Court, and worried that the Rehnquist Court was embarked upon "judicial activism." During the first months of 2001, no Bush nominees were confirmed to the federal courts and Democrats asserted that there was a need for a balance of interpretive approaches on the bench. Republicans countered this argument by asserting that ideology had no place in judging, which, they claimed, ought to be conceived of as an objective search for the original under-standing of the legislature or the sovereign people. The nature of judicial review had once again become one of the most important issues in national politics.

BIBLIOGRAPHY

Dionne, E. J., Jr., and William Kristol, eds. Bush v. Gore: The Court Cases and the Commentary. Washington, D.C.: Brookings Institution, 2001.

Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review. Cambridge, Mass.: Harvard University Press, 1980.

Perry, Michael J. The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary. New Haven, Conn.: Yale University Press, 1982.

Presser, Stephen B. Recapturing the Constitution: Race, Religion, and Abortion Reconsidered. Lanham, Md.: National Book Network, 1994.

Wolfe, Christopher. The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law. New York: Basic Books, 1986.

Wood, Gordon S. The Creation of the American Republic, 1776–1787. Chapel Hill: University of North Carolina Press, 1969.

Stephen B.Presser

See alsoSupreme Court .

JUDICIAL REVIEW

A court's authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles.

The power of courts of law to review the actions of the executive and legislative branches is called judicial review. Though judicial review is usually associated with the U.S. Supreme Court, which has ultimate judicial authority, it is a power possessed by most federal and state courts of law in the United States. The concept is an American invention. Prior to the early 1800s, no country in the world gave its judicial branch such authority.

In the United States, the supremacy of national law is established by Article VI, Clause 2, of the U.S. Constitution. Called the supremacy clause, it states that "This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land." It goes on to say that, "judges in every state shall be bound thereby." This means that state laws may not violate the U.S. constitution and that all state courts must uphold the national law. State courts uphold the national law through judicial review.

Through judicial review, state courts determine whether or not state executive acts or state statutes are valid. They base such rulings on the principle that a state law that violates the U.S. constitution is invalid. They also decide the constitutionality of state laws under state constitutions. If, however, state constitutions contradict the U.S. Constitution, or any other national statute, the state constitution must yield. The highest state court to decide such issues is the state supreme court.

While judicial review of state laws is clearly outlined in the supremacy clause, the Framers of the U.S. Constitution did not resolve the question of whether the federal courts should have this power over congressional and executive acts. During the early years of the Republic, the Supreme Court upheld congressional acts, which implied the power of judicial review. But the key question was whether the Court had the power to strike down an act of Congress.

In 1803, the issue was settled in marbury v. madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60, when the Supreme Court, for the first time, ruled an act of Congress unconstitutional. In Marbury, Chief Justice john marshall reasoned that since it is the duty of a court in a lawsuit to declare the law, and since the Constitution is the supreme law of the land, where a rule of statutory law conflicts with a rule of the Constitution, then the law of the Constitution must prevail. Marshall asserted that it is "emphatically the province and duty of the judicial department, to say what the law is."

Having established the power of judicial review, the Supreme Court applied it only once prior to the Civil War, in 1857, ruling the missouri compromise of 1820 unconstitutional in dred scott v. sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691. During the same period, the Court invalidated several state laws that came in conflict with the Constitution. In m'culloch v. maryland, 17 U.S. 316, 4 L. Ed. 579 (1819), the Court invalidated a state's attempt to tax a branch of the bank of the united states. In gibbons v. ogden, 22 U.S. 1, 6 L. Ed. 23 (1824), the Court struck down a New York law granting a monopoly to a steamboat company, saying that the state law conflicted with a federal law granting a license to another company.

In addition to invalidating state laws, the Marshall Court established the authority to overrule decisions of the highest state courts. In martin v. hunter's lessee, 14 U.S. 304, 4 L. Ed. 97 (1816), the Court referred to the supremacy clause to assert that its appellate power extended to state courts.

Following the Civil War, the Supreme Court grew concerned that the recently-passed fourteenth amendment would give the federal government too much power over state governments and individual rights. Therefore, it used the power of judicial review to strike down federal civil rights laws that sought to address racial discrimination in the former Confederate states. Beginning in 1890, the Court became embroiled in political controversy when it exercised its power of judicial review to limit government regulation of business. In Chicago, Milwaukee, & St. Paul Railroad Co. v. Minnesota, 134 U.S. 418, 10 S. Ct. 462, 33 L. Ed. 970 (1890), the Court struck down a state law establishing a commission to set railroad rates. This case was the first of many where the Court applied the doctrine of substantive due process to invalidate state and federal legislation that regulated business. Substantive due process was a vague concept that required legislation to be fair, reasonable, and just in its content.

Through the early 1900s, the Court came under attack from Populists and Progressives for its desire to insulate capitalism from government intervention. Unmoved by its critics, the Court proceeded to invalidate a federal income tax (pollock v. farmers' loan & trust co., 157 U.S. 429, 15 S. Ct. 673, 39 L. Ed. 759 [1895]), limit the scope of the sherman anti-trust act (United States v. E. C. Knight Co., 156 U.S. 1, 15 S. Ct. 249, 39 L. Ed. 325 [1895]), and forbid states to regulate working hours (lochner v. new york, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 [1905]).

The Supreme Court's use of substantive due process brought charges of "judicial activism," which means that in determining whether laws would meet constitutional muster, the Court was accused of acting more as a legislative body than as a judicial body. Justice oliver wendell holmes jr., in his famous dissenting opinion in Lochner, argued for "judicial restraint," cautioning the Court that it was usurping the function of the legislature.

Despite Holmes's warning the Court continued to strike down laws dealing with economic regulation into the 1930s. In 1932, the United States, in the midst of the Great Depression, elected franklin d. roosevelt president. Roosevelt immediately began to implement his new deal program, which was based on the federal government's aggressive regulation of the national economy. The Supreme Court used its power of judicial review to invalidate eight major pieces of New Deal legislation.

Roosevelt, angry at the conservative justices for blocking his reforms, proposed legislation that would add new appointees to the Court—appointees that would create a liberal majority. This "court-packing" plan aroused bipartisan opposition and ultimately failed. But the Court may have gotten Roosevelt's message, for in 1937, it made an abrupt turnabout: a majority of the Court abandoned the substantive due process doctrine and voted to uphold the wagner act, which guaranteed to industrial workers the right to unionize and bargain collectively (national labor relations board v. jones & laughlin steel corp., 301 U.S. 1, 57 S. Ct. 615, 81 L. Ed. 893 [1937]).

With this decision the Court ceased to interpret the Constitution as a barrier to social and economic legislation. The Court subsequently upheld congressional legislation that affected labor relations, agricultural production, and social welfare. It also exercised judicial restraint with respect to state laws regulating economic activity.

Beginning in the 1950s, the Supreme Court exercised its judicial review power in cases involving civil rights and civil liberties. During the tenure of Chief Justice earl warren, from 1953 to 1969, the Court declared federal statutes unconstitutional in whole or in part in 25 cases, most of the decisions involving civil liberties. The Warren Court's decision in brown v. board of education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), however, invalidated state laws that mandated racially segregated public schools.

The Supreme Court became increasingly conservative in the 1970s. Yet, in 1973, under Chief Justice warren e. burger, it invalidated state laws prohibiting abortion in roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147. Since the elevation of william h. rehnquist to chief justice in 1986, the Court has continued its movement to the right, although it has not retreated from most of the protections it recognized under Warren in the realm of civil rights and civil liberties.

The exercise of judicial review is subject to important rules of judicial self-restraint, which restrict the Supreme Court, and state courts as well, from extending its power. The Supreme Court will hear only cases or controversies, actual live disputes between adversary parties who are asserting valuable legal rights. This means the Court cannot issue advisory opinions on legislation. In addition, a party bringing suit must have standing (a direct stake in the outcome) in order to challenge a statute.

The most important rule of judicial restraint is that statutes are presumptively valid, which means that judges assume legislators did not intend to violate the Constitution. It follows that the burden of proof is on the party that raises the issue of unconstitutionality. In addition, if a court can construe a disputed statute in a manner that allows it to remain intact without tampering with the meaning of the words or if a court can decide a case on nonconstitutional grounds, these courses are to be preferred. Finally, a court will not sit in judgment of the motives or wisdom of legislators, nor will it hold a statute invalid merely because it is deemed to be unwise or undemocratic.

further readings

Dellinger, Walter, and Christopher H. Schroeder. 2003. "The Case for Judicial Review." Washington Post (December 6).

Curtis, Kent. 2003. "Judicial Review and Populism." Wake Forest Law Review 3 (summer): 313–74.

Kramer, Larry D. 2004. The People Themselves: Popular Constitutionalism and Judicial Review. New York: Oxford Univ. Press.

Lipkin, Robert Justin. 2000. Constitutional Revolutions: Pragmatism and the Role of Judicial Review in American Constitutionalism. Durham, N.C.: Duke Univ. Press.

Prakash, Saikrishna B., and John C. Yoo. 2003. "The Origins of Judicial Review." University of Chicago Law Review 70 (summer): 887–982.

Seidman, Louis Michael. 2001. Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review. New Haven, Conn.: Yale Univ. Press.

cross-references

Due Process of Law; Separation of Powers; Supreme Court of the United States.