The Supreme Court and Judicial Review

The Supreme Court for the United States was established by Article III of the Constitution.  Section 1 reads, in part, “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”  There is no other guidance for what the Court will do, other than to set an initial, generalized jurisdiction outlined in Section 2: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority”.  That’s it.  There is nothing about the Court reviewing laws passed by Congress and signed by the President.  There is nothing about the Court reviewing the laws and judicial rulings of the states.  If someone was a “strict constitutionalist”, they would have to conclude that the Supreme Court does NOT have the right to review such things.  Judicial review stands in direct conflict with a literal, formulized view of the Constitution, and yet it is a concept accepted as implicit in the Constitution since the beginning of the Republic.


The vast majority of American legal concepts are based on English common law.  Prior to the Revolution, it was English common law that guided legal practices in the American colonies.  One aspect of common law was judicial review of people’s actions.  A judge could review a case and determine if any known laws were broken or followed, see how the case fit into the English constitution, and if necessary pronounce new laws.  The English constitution is not a single written document, like in the United States.  It is a collection of laws, charters, and legal precedents that are taken as a whole, with the underlying principles being the constitution that guides the country.  Legal precedents hold the force of law and can be summarized simply in the shortened Latin stare decisis, or the more complete stare decisis et non quieta movere, or “to stand by decisions and not disturb the undisturbed”.  Simply put, it means a judge is to follow the decisions already made in prior court decisions.  This guiding principle of English common law is also central to American law. It factors into Supreme Court decisions, and gives guidance to lower court interpretations of the law.

Stare decisis and judicial review were part of the American colonial experience, and they continued to be part of our legal culture under the Articles of Confederation after the Revolution.  When the convention gathered in Philadelphia in 1787, the delegates were well aware of the concept and accepted it as part of what a court did. They recognized that it was not perfect, but it was something they were familiar with.  It is clear from the Notes of Debates in the Federal Convention of 1787 that the delegates fully intended for the Supreme Court to be able to overturn laws it deemed unconstitutional.  James Madison had expressed the view as early as 1785 in a letter to Caleb Wallace when he wrote that an independent judiciary was necessary as it “maintains private Right against all the corruptions of the other two departments” (legislative and executive) (Madison, Writings, page 43).  Further, he let Wallace know that he believed any constitution had to be adaptable, by amendments and by judicial review, as conditions changed.

James Madison feared the legislative branch most of all in a national government.  He believed it might be too easily swayed by popular passions, and could be used to infringe on the rights of a political minority.  He pushed forcefully for independent judicial and executive branches to guard against the legislative branch.  In both a speech on June 6, 1787 on the Revisionary Power of the judicial branch and a speech on July 17, 1787 on Electing the Executive, he argued for the independent powers of the judiciary and the executive.  He was concerned that any legislature that would encroach on citizens’ rights could only end in revolution.  Madison expanded further on his position that the judiciary must be an independent branch of government with the power to overturn laws, even laws desired by the majority over minority rights, in Federalist 44, Federalist 48, and Federalist 49.  In a speech he gave to the Virginia Ratifying Convention on June 20, 1788, Madison expressly declared that the national judiciary was in a unique position to determine what was constitutional, both in the letter and the spirit of the law.

In that same speech on June 20, 1788, James Madison said the Constitution gave the federal judiciary power and jurisdiction that expressly limits the power of the states.  The Supreme Court’s authority was intended to establish universal and uniform justice throughout the entire country.  He agreed with Thomas Jefferson, when in a letter to Jefferson on October 24, 1787, he wrote that the judiciary will serve to “keep the States within their proper limits, and supply the place of a negative on their laws”. (Madison, Writings, page 148)  The power of judicial review was read into the Constitution by both the Federalists and the Anti-federalists as the country debated ratification of the new Constitution.  Federalist 78 by Alexander Hamilton clearly explains that the Court has the power to overturn laws, and he then goes further.  It also is the best guardian of minority rights against the tyranny of the majority.  This was not disputed by the Anti-federalists.  Their position was best explained by “Brutus” (probably Robert Yates, a judge and New York delegate to the Constitutional Convention).  In his writings, “Brutus” believes the Supreme Court’s ability to declare laws unconstitutional and to overturn jury decisions is something to be feared; but he does not believe the Court does not have that power.  He sees it perfectly, even holding that the Constitution allows for the Supreme Court to make its decisions based on the spirit of the Constitution and not simply on the letter of the Constitution.  He thought this was a possibility based on one understanding of “equity” as a legal term in the 18th century.  Neither side in the fight over ratification of the Constitution denied that the ambiguous wording of Article III would result in a Supreme Court with the power to “make law” once the document was adopted.  Their differences were over what impact that might have on the country.

During the course of the debates during the framing of the Constitution, some argued for the national government to have a veto power over state laws.  Their experience under the Articles of Confederation taught them that the state governments were weak, ineffectual, petty in their disputes with other states, and generally corrupt to the point that no country could be sustained under that form of government.  James Madison wanted both the federal judiciary and the executive to be able to declare state laws unconstitutional before they took effect.  Madison argued forcefully for the right because he believed that only a strong national government could hold together such a large country.  But once the issue was put to a vote, the delegates decided against giving the national government this direct power.  However, the very next day the delegates did approve the supremacy clause in Article VI, clause 2 of the Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The day after voting down a direct veto of state laws by the national government, the delegates accepted that the states had to follow national laws and be guided by national decisions.  As will be noted below in a Supreme Court decision, this was not a limit on the federal government but an expansion on its power and control over the states.  The delegates were being cautious.  They knew that to boldly grant the national government direct control over state laws would likely doom ratification.  Too many states would oppose such an explicit granting of power.  The supremacy clause, coupled with judicial review implied in Article III, would give the national government indirect control over state laws.


Exactly what were the rights the Supreme Court would guarantee was not entirely clear.  Some, including James Madison, the chief architect of the Constitution, believed that writing down a set of individual rights was unnecessary.  Doing so might even limit the rights individuals could exercise.  However, Thomas Jefferson convinced Madison that a Bill of Rights was in fact needed.  In a letter Jefferson wrote to Madison on March 15, 1789, he laid out the need for a Bill of Rights to give the federal judiciary a legal guide to serve as a check on the powers of the legislative and executive branches.  Jefferson was concerned mainly about the legislature, but also foresaw a time when the President would need restrictions placed on his power at some “remote period”. (Jefferson, page 944)  Madison had just been seated as a newly-elected member of the House of Representatives in the First Congress.  He had narrowly defeated James Monroe, at this time an opponent of the Constitution, in a district that had been drawn in Monroe’s favor.  It fell to Madison to propose a Bill of Rights, and the result of his efforts were the first ten amendments to the Constitution.

The stage was set for testing the powers of the Supreme Court and federal judiciary with the adoption of the Constitution, the beginning of the federal government, and the Bill of Rights.  The Supreme Court would have to rely on the legal concepts inherited from Great Britain and the new Constitution to guide its actions.  The first case to reach the Court concerning a constitutional question was Hylton v. United States (1796).  The decision in the case was not controversial because the Court upheld an act of Congress as constitutional.  However, this was not the case when the Court decided Marbury v. Madison (1803).

To be continued…


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