The Constitutional Basis for Judicial Review

Recently, Lino Graglia published a review of Akhil Amar’s new book that made some claims about the basis for judicial review in the Constitution.  Lino wrote:

Constitutional law is the product of judicial review, the power of judges to invalidate policy choices made by other officials of government on the ground that they are prohibited by the Constitution.  Although the power obviously creates the danger of making the judiciary — more specifically, the Supreme Court — superior to the legislature and the ultimate lawgiver, it is not explicably  provided for in the Constitution.  [MR note: does Graglia mean explicitly or explicably?]  It was established and defended by Chief Justice John Marshall in the famous case of Marbury v. Madison, however, on the ground that it is inherent in a written constitution.  This was not correct in that other nations had and have written constitutions without judicial review.  Limiting judicial review to enforcement of a written Constitution does, however, serve the purpose of making it a tool of constitutionalism rather than simply a transference of policymaking power to judges.

Lino’s claim is not entirely clear, but it can be interpreted as asserting that judicial review is not really in the Constitution.  While Lino may or may not mean this, this claim about the lack of basis for judicial review used to be very common.  It obviously supports nonoriginalism.  If the power of judicial review is just made up, then one might argue that there can be little objection to judges exercising that power by making things up as well.

But judicial review is not just made up.  In recent years, scholars have argued persuasively that the Framers expected judicial review of the Constitution.  But, even more importantly, judicial review has a strong basis in the constitutional text.  While I cannot go review all of the arguments, I will try to hit the high points.

First, the Supremacy Clause expressly states that a form of judicial review exists:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which 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, anything in the Constitution or laws of any State to the contrary notwithstanding.

Clearly, this is stating that state court judges must apply the Constitution rather than state statutes.  Thus, Graglia’s apparent claim that judicial review is not expressly in the Constitution is mistaken as to judicial review of state laws, and Graglia’s essay clearly indicates that he has such judicial review of state laws in mind.

But the constitutional text also supports judicial review of federal statutes.  This occurs in a number of different ways.  First, at the time of the Constitution, constitutions were thought to take priority over statutes.  Second, judges would also have a role in determining that a statute conflicted with the constitution (as opposed to the alternative possibility that the Congress would have the exclusive power to make that determination).  In the case of state statutes, the Constitution itself recognized that state courts would make the determination that the state statute conflicted with the Constitution (rather than state legislatures making the determination).  So the same rule would make sense as to federal statutes.  In addition, the Constitution proclaims itself law, which also suggests that judges should interpret it as they interpret other laws.  Further, the Constitution provides 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.”  That suggests that only federal statutes consistent with the Constitution are supreme law of the land.  This last provision is open to other interpretations, but significantly many people at the time of the framing interpreted it in that way.  See footnote 76 of this paper.

Reader Discussion

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on January 24, 2013 at 22:43:54 pm

Whenever the question of judicial review arises, I am surprised at the number of people who seem to think that the doctrine was an invention of Justice Marshall in Marbury v. Madison. But the power of Courts to declare laws unconstitutional was expressly addressed before the Constitution was even ratified. In Federalist No. 78, Alexander Hamilton directly addressed judicial review as essential to the preservation of a government of limited powers. He states:

"Limitations of this kind [i.e., limitations on the powers of Congress] can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."

On the issue of the power of Federal Courts to exercise judicial review over State laws, that too was directly addressed by Hamilton in Federalist No. 80, describing the necessary power of the Judiciary to negate any State laws "such as might be in manifest contravention to the articles of Union."

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Daniel Artz
on January 26, 2013 at 02:18:11 am

Here is the way I see it. Judicial review is just a term for judges saying what they think the law is. Acts beyond the powers granted to them by the power are not law, and judges have an obligation not to act like they are. But I would argue the same obligation extends to the executive and the legislative branches. None of the branches is supreme over the others, and to suppose as some do that the supreme court determines what the constitution means would give to the supreme court the ultimate power. Instead the supreme court just determines what the constitution means to the judicial branch of our government. And it has an obligation to use all the powers that it was granted to do what it can in the furtherance of that interpretation. But the legislative branch I believe has the same obligation, which is to declare invalid and unconstitutional any act previously passed. Now to make this effective it needs a veto-proof super majority in congress, but if the legislative branch belives that a law is unconstitutional it has the obligation to remove that act from the book. And the same is true for the executive which I believe can refuse to enforce any act that the president believes is unconstitutional. Its his oath of office to "preserve, protect and defend the Constitution", and to enforce an act which he believes is unconstitutional would violate that oath. And so thats the beauty in the end as to disagreements about what is and what is not constitutional "laws" between the branches. It is not a law unless all 3 branches do not declare a it unconstitutional, but if any one of the 3 believe the act to be unconstitutional then it is. Thereby all 3 branches are equal.

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Devin Watkins
on January 26, 2013 at 02:18:48 am

by the people*

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Devin Watkins
on November 03, 2014 at 22:09:20 pm

John Marshall was incorrect in my opinion. The Supreme court is not and should not be the final arbiter of what is Constitutional, the Constitution is. IOW, the Constitution was written in clear concise language so that it would be able to be understood by most people. It is the law of the land not the Supreme Court. The Supreme court has the job of making sure that any law that gets challenged is adhering to the Constitution. This can sometimes be a little tricky but it does not require much more than reading the document. Of course if we all did that then things like the Dept of Education, HUD and the EPA would all be gone. They have no Constitutional authority to exist. The fact that there are so many unconstitutional government agencies and laws that have no authority to exist should bother everybody and I don't understand why it doesn't. Even if you think that the laws are good the fact that they are outside the Constitution means that if they so desire they can write law that is bad and get away with it. Look at the money given away to people by the feds. Once again no Constitutional authority exists that says they can give away any money to anybody ever. The same is true with drug laws, abortion, and so on down the line.

People consistently seem to think the elastic clause is justification for these laws, but closer reading tells us that the elastic clause only applies to laws needed to implement the Constitution.

I mentioned that the Government could pass bad laws, well they already have. There is a list a mile long of things the government has done with the economy that have harmed the citizens. FDR is famous for this, he got Congress to pass unconstitutional laws that actually delayed the recovery from the Great Depression and hurt blacks and poor people by driving prices up. When the SCOTUS overruled them FDR tried to get them to pack SCOTUS with more judges. Rely on the document and make Congress adhere to it or we run the risk of losing more freedom.

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Mike McKelvy
on May 03, 2016 at 12:48:24 pm

Daniel Artz, first, I'm not sure why you are "surprised at the number of people who seem to think that the doctrine was an invention of Justice Marshall in Marbury v. Madison," after all, that is what I was taught in my constitutional law class at OSU. That in and of itself, however, is not proof of anything, so I merely cite the Constitution which gives a similar power to the executive but NOT the judiciary.

Second, the Federalist Papers were never voted on let alone ratified, so they don't prove anything other than Hamilton may have been confused and/or up to not good. That's a strong statement I just made, so let me provide some context as to why I said it.

Even though Alexander Hamilton may have given the false impression that Judicial Review was included in the Constitution on June 14, 1788 in Federalist #78, Thomas Jefferson specifically wrote James Madison on December 20, 1787 and stated the exact opposite. Giving feedback to Madison about the draft of the Constitution that had been narrowly passed three months earlier on September 17, 1787, Jefferson wrote: "I like the negative given to the Executive with a third of either house, though I should have liked it better had the Judiciary been associated for that purpose, or invested with a similar and separate power." Clearly Jefferson was pointing out that, although veto power had been granted to the president, it had not been given to the judiciary, and he was right as there is nothing in the constitution that supports judicial review, nor does it matter whether other countries were using judicial review or not as we were designing our own constitution. Jefferson clearly said this to the Constitution's primary architect after it was passed and before it was ratified.

Furthermore, the point you made about Federal Courts exercising "judicial review over State laws is no in question because of the 10th and 14th Amendments. Remember, the argument is not whether or the Judiciary can rule against a state in a lower court, the controversy is over the constitutionality of its alleged power to strike down a law passed by Congress. In other words, let's not confuse telling states with telling Congress how to do its job.

As Jefferson clearly pointed out in his letter to Judge Spencer Roane on September 6, 1819, the judiciary was not given this power because doing so would allow the Constitution to become "a mere thing of wax in the hands of the judiciary." Jefferson also pointed out that Congress was strangely silent about the Judiciary usurping this power.

We have known since at least 2001 that there very well may have been a conspiracy surrounding Marbury v. Madison (the genesis of Judicial Review). I highly recommend everyone read the following peer reviewed article to start connecting the dots: http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1045&context=facpub

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Brian Mumford
on May 22, 2017 at 01:03:47 am

[…] of Law Michael Rappaport, director of the Center for the Study of Constitutional Originalism, wrote in 2010, “judicial review is not just made […]

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Constitution Series: Judicial Review – Tennessee Star

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.