Judicial Review is a distinctive power associated with the Supreme Court that is nowhere specifically mentioned in the Constitution. Chief Justice John Marshall in Marbury v. Madison (1803) asserted the major principle on which it rests by observing: “[i]t is emphatically the province and duty of the judicial department to say what the law is” (p. 177). Through judicial review the Court most dramatically asserts its authority to determine what the Constitution means.

The power of the Court to review the law extends in two directions. The first involves decisions by other branches of the federal government. These cases include actions taken by the executive branch, like the decision by President Richard Nixon to withhold taped records of conversations in the White House, and statutes passed by Congress, such as the Missouri Compromise, which excluded slavery from northern portions of the Louisiana Purchase territory. Judicial review also expresses the authority of the federal courts over state laws and judicial decisions that involve the federal Constitution. Whether involving federal or state matters, the practice of judicial review has been marked by dynamic expansion and persistent controversy. Judicial power has been consolidated both in the superiority of the federal judiciary over the states and of the Supreme Court over the other branches of the federal government. The authority of the federal government that became centralized after the Civil War is one of the pillars of judicial review and vice versa. Justice Thurgood Marshall, in commenting on the constitutional bicentennial celebration of 1987, said that the Constitution did not survive the Civil War, but was remade following that conflict. Since the late nineteenth century, power has come to be increasingly centered in a Supreme Court that would be unrecognizable to the founding generation. Not only do the justices now have a home and no circuit riding responsibilities, but the power to subject the acts of other branches of the federal government and the states to judicial scrutiny is widely accepted. Thus, judicial review is a dynamic institution that expands with the federal authority over the nation.

Origins.

Scholars trace the origins of judicial review to Dr. Bonham's Case (1610). Sir Edward Coke, of England's Court of Common Pleas, stated that “when an act of parliament is against common right and reason or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void” (p. 118a). Coke believed that the common lawyer possessed “artificial reason of the law” and that this capacity elevated him to nearly equal footing with king and Parliament. According to Coke, special learning required to interpret the law placed it above politics.

In 1761 the first significant American elaboration of Bonham's Case occurred. James Otis, in the Writs of Assistance Case in Boston, argued that British officers had no power under the law to use search warrants that did not stipulate the object of the search. Otis based his challenge to the underlying act of Parliament on Bonham's Case, the English Constitution, and the principle of “natural equity.” John Adams subsequently adopted this reasoning to defend the rights of Americans by appeal to a law superior to parliamentary enactment. Although colonial courts resisted such radical assertions, these claims nonetheless made the idea of judicial review an important feature of American constitutionalism (see Fundamental Rights).

After the Revolution, the framers of the Constitution debated, and then rejected, an aspect of judicial review, the judicial veto. Although they were concerned about consolidated power in the federal government and the authority of that government over the states, the framers approved the Supremacy Clause of Article VI resolving the latter issue and leaving the former to evolve over the years. They rejected explicit judicial authority over Congress as proposed in the Virginia Plan. James Madison, for example, reiterated the authority of fundamental law, but he refused to acknowledge the authority of the judiciary over the other branches of government. Prominent leaders of the founding generation and future Supreme Court justices James Wilson of Pennsylvania, Oliver Ellsworth of Connecticut, and John Marshall of Virginia argued in their state ratifying conventions that the national government would be limited by the judicial check.

In The Federalist Papers, Alexander Hamilton endorsed the idea of judicial review and provided one of its most compelling ideological foundations. Hamilton wrote that “whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. … [T]he judiciary … has no influence over either the sword or purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment” (no. 78). Thus, with such reassurances, Hamilton defended the practice of judicial review.

Since the origins of constitutional government in America, judicial review has followed Hamilton's thinking that judges have a special capacity and responsibility to expound the meaning of the Constitution. Attempts by state courts in the 1780s to assert a power over other political institutions either were ignored or brought forth denunciations from the legislature, often with threats to remove the judges. Richard Dobbs Spaight of North Carolina asked “if the judiciary acted as a check on the legislature, then who was to act as a check on the judiciary?” Like the national judiciary, which was also hotly contested in the last years of the eighteenth century, the practice of judicial review was in its formative period.

As a Supreme Court justice, James Iredell, who had been a proponent of judicial review during the Constitutional Convention, developed an institutional foundation for judicial power in his seriatim opinion in Calder v. Bull (1798). He argued against grounding decisions of the Court in the laws of nature. Instead, Iredell proposed that the only basis for invalidating a statute that had been erected by “the legislature of the Union, or the legislature of any member of the Union” was that it violated a provision of the written Constitution in a “clear and urgent case” (p. 399).

The Republican party of Thomas Jefferson challenged Federalist dominance of the judiciary. Jefferson went so far as to predict in a letter to Abigail Adams of 1804 that “The efforts of Federalism to exalt the Judiciary over the Executive and Legislative and to give that favorite department a political character and influence … will probably terminate in the degradation and disgrace of the judiciary.” Jefferson's prognostications proved faulty in several respects.

Early Decisions.

“If Congress were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. … They would declare it void,” insisted future chief justice John Marshall at the 1788 Virginia Ratifying Convention. Marshall supplied a practical meaning to these words in the classic case of Marbury v. Madison (1803), in which he securely rooted the modern doctrinal source of judicial review. Marshall himself contributed to the chain of events that culminated in Marbury. Shortly before his appointment to the Court in 1801, Marshall, as secretary of state, failed to deliver a commission as justice of the peace in the District of Columbia to William Marbury, a loyal Federalist. Marbury requested that James Madison, the secretary of state under newly elected president Thomas Jefferson, issue the commission. Madison refused, and Marbury went directly to the Supreme Court. He claimed that under section 13 of the Judiciary Act of 1789 the Court had the original jurisdiction to issue writs of mandamus. Marbury wanted the Federalist‐dominated Supreme Court to order the Jeffersonian Republican‐controlled executive branch to deliver his commission.

Marbury's case threatened to plunge the justices into a political thicket. They readily calculated the furor that a writ of mandamus issued against Jefferson's administration would stir at a time when more radical Republicans were bent on stripping the Court of its power. At best, the president might have simply ordered Madison to disregard the Court; at worst, he might have lent even more of his prestige to efforts already under way by the radical wing of his party in Congress to limit sharply the Court's power.

Marshall appreciated these exigencies. The first part of his opinion sustained Marbury's claim on the basis of the vested‐rights doctrine, an outgrowth of the natural‐rights philosophy of the Revolution that held that certain rights were so fundamental that they were beyond government control. The Court, with its responsibility to preserve fundamental law, was obligated to protect such rights. Distinguishing between political and other rights, Marshall disallowed judicial concern with the former on the grounds that the protection of political rights belonged instead to the popularly accountable political branches. The Court, Marshall said, drew its authority from the well of popular sovereignty, but it could exercise that power only in settling controversies involving fundamental law rather than politics.

What Marshall gave to Marbury in the first half of the opinion he took away in the second. Although a writ of mandamus was in order, the Court could not issue it. The chief justice arrived at this conclusion through a close textual reading of section 13 of the 1789 act and also Article III of the Constitution. Congress might subtract from the Court's original jurisdiction, but Congress could not add to it—as section 13 did—because Article III had already established the Court's jurisdiction fully. With arguments reminiscent of state court implementation of judicial review during the 1780s, Marshall worried that an expansion of the Court's jurisdiction would thrust the justices into political disputes that the political branches themselves could not settle. Such involvement, he concluded, would prevent the Court from acting primarily as the legal institution he believed the departmental theory required.

Because of judicial review the justices would not enforce an unconstitutional act. Through his opinion in Marbury, Marshall simultaneously limited and expanded the Court's power; less power became more. The chief justice accepted the inherent limitation placed on the scope of judicial power, but he boldly asserted that the Court had a responsibility to say what the Constitution meant.

Marbury was a problematic constitutional case in a difficult political setting. Marshall's opinion was defensive; it sought to keep the Court free of political pressures by limiting its role to clearly legal as opposed to political issues. Marshall did not exercise judicial discretion in the modern sense of the word. Interpreting law was not synonymous with making it. Marbury did not receive his commission, but Marshall used the occasion to pronounce the essential elements of judicial review.

Although some nineteenth‐century state court decisions claimed no more for judicial authority than did Marbury, most later instances of judicial review asserted a broader scope of judicial power. Marshall's decisions involving the constitutionality of state legislation proved considerably more controversial in time than Marbury. In a series of major decisions between 1810 and 1824, Marshall resorted to natural law, the Contracts Clause, and the commerce power, among others, to void state statutes, while simultaneously narrowing the reach of the Eleventh Amendment. In Fletcher v. Peck (1810), Marshall relied both on natural‐law formulations drawn from Calder and on the contracts clause of Article I, section 10 of the Constitution to strike down a state statute interfering with title to real property.

But nine years later, in Dartmouth College v. Woodward, Marshall abandoned the natural‐law leg of his Fletcher reasoning and relied on the Contracts Clause alone to thwart a state's attempt to modify the charter of a corporation. The Dartmouth College decision is regarded as an essential step in the emergence of the private, profit‐making corporation as a legal entity in the United States (see Private Corporation Charters).

Marshall limited a state's power to revoke a legislatively granted tax exemption in New Jersey v. Wilson (1812), a particularly controversial holding because it cut so close to sovereign state powers (see State Sovereignty and States' Rights). He extended the reach of judicial power over state taxation in McCulloch v. Maryland (1819), arguably his greatest and most influential opinion, holding that a state could not tax the Bank of the United States or any other instrumentality of the federal government. McCulloch provoked a storm of controversy, most of it emanating from Virginia, but that did not deter Marshall from constricting the Eleventh Amendment in Osborn v. Bank of the United States (1824) to prohibit the state of Ohio from taxing a branch of the Bank in violation of the McCulloch holding.

The decision that most antagonized the Virginians involved an assertion of the Court's authority not over state legislation but over a state supreme court. Martin v. Hunter's Lessee (1816), an opinion written by Justice Joseph Story after Marshall had to excuse himself for personal interest in the subject matter of the litigation, asserted the power of the United States Supreme Court over the politically sensitive subject of state confiscation of Loyalist property during the War for American Independence. Despite the fervid opposition of Chief Judge Spencer Roane of the Virginia Court of Appeals, who denounced Martin as a fatal incursion on state sovereignty, Marshall again reversed a Virginia holding in Cohens v. Virginia (1821) in a ringing vindication of the Supremacy Clause of Article VI.

Gibbons v. Ogden (1824) provided the Court its first opportunity to construe the Commerce Clause of Article I, section 8, which Marshall used to void a state monopoly of river transportation. Although the Contracts Clause remained the Court's most potent weapon of discipline over state legislation throughout the nineteenth century, the Commerce Clause was to emerge in the twentieth as the principal source of federal legislative authority, and Marshall's expansive reading set it off on its career as the basis of vast federal regulatory power over the economy.

President Thomas Jefferson, responding to Marshall's opinion in Marbury, composed “Instructions to a Federal Prosecutory” in 1807, attempting to advance the prosecution of Aaron Burr for treason. Jefferson argued against citing Marbury and proposed “to have [the decision] denied to be law.” He went on to hold “the three great branches of the government should be coordinate, and independent of each other.” Jefferson believed each branch of the government had the right to decide for itself the constitutionality of matters before it and objected to a claim that the Court's judgment was superior to that of the other branches. His efforts on behalf of repeal of the Judiciary Act of 1801 and the first judicial impeachments supported the doctrine of “co‐ordinate construction,” whereby each branch of the federal government interprets the Constitution for itself.

The Pennsylvania case of Eakin v. Raub (1825) provided criticism of Marbury from the state's chief judge, John Gibson. His dissent in that case is viewed as the best exposition of legislative supremacy in early American history. The case dealt with judicial review in Pennsylvania state courts but also addressed questions of federal power raised in Marbury. Gibson argued that “[i]f the judiciary will inquire into anything besides the form of enactment, where shall it stop?” He went on to object, “That the judiciary is of superior rank, has never been pretended, although it has been said to be coordinate” (p. 330). Gibson's reading of the Constitution led him to observe, “[H]ad it been intended to interpose the judiciary as an additional barrier, the matter would surely not have been left in doubt” (p. 331). To Gibson, the written Constitution was accessible to the public and it was the public's ability to hold the legislature accountable to the text that provided the ultimate check on the excesses of government.

The Court's power of review over federal legislation lay dormant for a half century after Marbury, despite the Court's activism with respect to state legislation. Chief Justice Roger B. Taney reassumed the power in Scott v. Sandford (1857) by invalidating the Missouri Compromise of 1820, a federal statute that prohibited the spread of slavery into the Louisiana Purchase territory north of Missouri. Taney's opinion would have been unpopular enough in the North even without the complication of expanded Supreme Court power over politically sensitive issues. Yet the violent northern political reaction to Taney's provocative decision did not produce a sustained assault on the Court as an institution, no matter how fervently northern political leaders assailed Dred Scott and its author. Late in his opinion, Taney also claimed that the slavery restriction violated the Due Process Clause of the Fifth Amendment. But he did not pursue the point there, and Dred Scott was soon overtaken by events, so the potential of the dictum was not realized for over a generation.

President Abraham Lincoln's first inaugural address (1861) indicates the continuing resistance to rule by the judiciary in the middle of the nineteenth century. In this address, Lincoln sought to reassure the southern states that they would continue to be governed by law rather than fiat. His discussion of the law upon assuming the office of the presidency included extended treatment of his role as interpreter. “I take the official oath today, with no mental reservations, and with no purpose to construe the Constitution or laws, by any hypercritical rules.” Grounding his analysis on the concept of the perpetuity of the union, Lincoln engaged in a disquisition on the nature and interpretation of the Constitution. Union came first; the purpose of the Constitution was to form a more perfect one. Lincoln acknowledged that decisions of the Supreme Court were binding on the parties involved and that they were also “entitled to very high respect and consideration, in all parallel cases, by all other departments of the government.” But he also insisted that “if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.” Lincoln's concluding reaffirmation of popular sovereignty continues to influence the meaning of judicial review even today.

Practice Emerges.

The Supreme Court of the late nineteenth century realized the full potential of judicial review over both federal and state legislation. Marshall had asserted it, but after 1824 he was reduced to seeing its reach weaken in the face of political assault on its use against state legislation. Taney's respect for state authority avoided that clash, but his resort to the power to overturn federal legislation proved abortive in the Dred Scott case. While the Supreme Court did not write on a clean slate after the Civil War, neither did its innovative decisions expanding judicial review occupy a crowded field of precedent. Thus the Court's creation of the doctrines of substantive due process and freedom of contract were innovations far in advance of anything adopted by the justices in the antebellum era.

A five‐justice majority of the Court relied on traditional notions of police power to uphold state regulatory authority (in this case, the grant of a monopoly over butchering activity in New Orleans) in the Slaughterhouse Cases of 1873. Though the Court strongly reaffirmed the role of the police power just four years afterward in Munn v. Illinois (1877), the dissent of Justices Stephen J. Field and Joseph P. Bradley in Slaughterhouse laid the basis for the sweeping triumph of substantive due process within two decades. Each insisted that any individual had a right to enter into contracts (including employment and business relationships, such as slaughtering), and that this right was protected by the federal Constitution. Field found that right primarily in the Privileges or Immunities Clause of the Fourteenth Amendment, Bradley in the Due Process Clause of that amendment. Bradley's view prevailed in the 1890s, first somewhat obscurely in Chicago, Milwaukee, and St. Paul Railway Co. v. Minnesota (1890) and then triumphantly in Allgeyer v. Louisiana (1897), where the Due Process Clause protected business contracts from legislative regulation.

This trend culminated twice before the New Deal, first in Lochner v. New York (1905), where the Court by a 5‐to‐4 decision invalidated a New York statute prohibiting bakers from working more than sixty hours a week, and then after the war in Adkins v. Children's Hospital (1923), when the Court, again by a 5‐to‐4 margin, struck down a state minimum‐wage law for women. In both of these major decisions, the majority found in the Fourteenth Amendment's Due Process Clause a substantive restraint on state legislative policy making. The Court reached comparable results for federal legislative authority in Adair v. United States (1908), which relied in part on the Fifth Amendment's Due Process Clause. Other decisions that curbed federal power to regulate the economy drew more on arguments based on concepts of federalism than from substantive due process. The principal specimens of these were the two child‐labor decisions: Hammer v. Dagenhart (1918) (the Commerce Clause) and Bailey v. Drexel Furniture (1922) (the Tax Clause).

Yet the Court was not consistent in its substantive due process approach, for it sustained far more legislation, state and federal, than it struck down. Major examples of decisions sustaining economic regulatory legislation included Holden v. Hardy (1898), upholding a Utah maximum‐hours law for men in mining and smelting industries; Muller v. Oregon (1908), upholding maximum‐hours legislation for women; and various decisions sustaining federal authority under the commerce and tax clauses. World War I gave a short‐lived impetus to such results, especially those involving federal power. Thus, by the 1930s the Court had created two inconsistent lines of precedent, the one sustaining, and the other rejecting, the exercise of legislative power at the state and federal levels.

This conflict came to a head in the New Deal. Between 1934 and 1937, the Court first accepted state and federal regulatory efforts to contend with the economic crises of the Depression, in such leading cases as Home Building and Loan Association v. Blaisdell (1934) and Nebbia v. New York (1934) (state authority) and Ashwander v. TVA (1936) (federal). But the mind‐set of substantive due process shortly triumphed, and in a series of decisions that shocked the Roosevelt administration, the Court overturned federal legislative initiatives (e.g., Schechter Poultry v. United States, 1935, involving the National Recovery Act; and United States v. Butler, 1936, involving regulation of agriculture), as well as state legislation: Morehead v. New York ex rel. Tipaldo (1936, involving state minimum‐wage legislation). By 1937, a five‐justice majority of the Court seemed to have embraced the discredited Lochner and Adkins precedents in an effort to frustrate all legislative attempts to cope with the Depression.

President Franklin D. Roosevelt responded with the court‐packing plan, an attempt to enlarge the Supreme Court and lower federal courts with FDR appointees more sympathetic to an activist legislative program. Though he failed in this effort, he won the larger campaign of forcing the Court to reverse substantive economic due process precedents dating back to the Slaughterhouse dissents. The Court was now free to embark on a new period of judicial activism, liberated from the formalist mentality that produced Lochner and its progeny.

Though the Court abandoned substantive due process in questions of economic regulation, the concept itself was not defunct, nor had the Court forsaken activism. Rather, it diverted its concern over legislative power from economic matters to problems of civil liberties and civil rights. Justice Harlan Fiske Stone enunciated this new direction obscurely, in Footnote Four of United States v. Carolene Products Co. (1938) stating that the Court would now scrutinize three categories of issues: “where legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments”; “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation”, and “statutes directed at particular religious … or national … or racial minorities” (p. 153). The Court lost no time in putting that agenda into effect.

The two substantive doctrinal contributions that characterize the growth period for the modern Court are acceptance of economic regulation and the nationalization of civil liberties. Agency cases like those validating the National Labor Relations Board and social welfare decisions upholding Social Security solidified the federal administrative apparatus as the Court turned its attention elsewhere. Civil liberties protection was an extended consequence, a new preoccupation that represented, in the words of legal scholars, an “idea of progress.”

The desegregation decision, Brown v. Board of Education (1954), criminal procedure holdings like Mapp v. Ohio (1961), and the abortion decision in Roe v. Wade (1973) epitomize the most recent period of judicial activism. Brown was a bold restatement of the concept of equality, resulting from America's repudiation of racial discrimination. In Roe, the standard of equality applied to abortion accommodated women's expanded roles in the marketplace. All of these decisions mobilized the institutional authority of the Court and the authority of federal over state law to advance the political idea of equal treatment.

While the court‐packing plan of the New Deal forced a major diversion in the Court's use of judicial review, United States v. Nixon (1974) affirmed the Supreme Court's power to stand against the other branches of the government. This decision, in which the Court ordered the president to turn over politically damaging materials, came at the height of a dramatic confrontation between Congress and the presidency. The political context in which the decision was reached boosted the authority of the Court in American political culture, because the justices ordered the president to act against his own interests. The president obeyed. This decision was widely heralded as saving the country from executive tyranny and was accepted as an assertion of the authority of the Supreme Court as the “final arbiter” in constitutional matters.

Modern Practice.

Mid‐twentieth‐century judicial review emphasizes the Supreme Court's predominance over the executive and the legislative branches of the federal government and the states in matters of constitutional interpretation. The power derives from the justices' expertise in interpreting the Constitution and its supremacy as law. The language of law is constitutive because the various communities that compose the American nation accept its conventions. In constitutional law, judicial review is a function of professional and seemingly apolitical practices dating to John Marshall's opinions. The lawyers who speak to the courts today and the lawyers who sit on the bench have developed a special way of speaking about the power of judges, so much so that some observers have concluded that the Constitution is “what the justices say it is.”

On the occasion of the two‐hundredth anniversary of the Constitution, Americans had come to accept judicial review at the same time that the controversy over its origins persisted. Solicitor General Kenneth W. Starr observed that “by virtue of the status of the Constitution as supreme law” the American system would “include the power of judicial review.” At the same time, the justices needed a power that brought them status in the present day far beyond what they ever had before. Chief Justice William H. Rehnquist has noted that “We … must realize that our work has no more claim to infallibility than that of our predecessors.” He pointed out that the statement “on the front of this building—Equal Justice Under Law—describes a quest, not an institution.”

Recently the Court has shifted its attention away from civil liberties to separation of powers, an area in which the authority of judges is grounded in the expectations of the founders and the canons of constitutional philosophy. The erosion of the political question doctrine and the political content of some recent decisions coexist with continued assertions that judges are not simply politicians behind, the bench. Even as the Court attempts to establish the boundary of its legal authority, the justices continue to expand the bases of judicial review.

With regard to political questions, the evolution of the modern Supreme Court has been away from traditional legal forms associated with the judiciary in favor of informality and bureaucracy. National authority over the Constitution is based more on the Supreme Court's position at the helm of the national judiciary than any uniquely legal qualities. The political question doctrine is a device for transferring the responsibility for a question or decision to another branch of government, usually Congress. In the 1960s, the justices entered one of the last remaining spheres that had been closed off by the political question doctrine in the reapportionment decision Baker v. Carr (1962). According to some scholars, questions became political simply because judges refused to decide them (see Reapportionment Cases).

The Court continues to move in that direction, as indicated by Davis v. Bandemer (1986), the political gerrymandering case. Although the Court did not find political gerrymandering to be discriminatory, the clear implication was that the justices might soon make such a finding. Thus there is little in the way of substantive questions that separates judges from other actors in the political process.

Yet other cases, such as Webster v. Reproductive Health Services (1989), provide evidence of the new limits of judicial review. In the matter of judicial authority, the dissenting opinion by Justice Antonin Scalia portrayed vividly the need for the Court to protect itself from immersion in the political arena. “The outcome of today's case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is states‐manlike needlessly to prolong this Court's self‐awarded sovereignty over a field where it has little proper business since the answers to most of the cruel questions posed are political and not judicial” (p. 532).

Nomination hearings for appointment to the Supreme Court have highlighted the inevitable tension in judicial review between law and politics. Hearings on Sandra Day O'Connor's nomination in 1981 attempted to draw out the nominee on the issue of abortion. She stated that it was facts, law, and constitutional principles that would guide her decisions, not her personal views. Extensive questioning of nominee Robert Bork demonstrated that politics resides in the exercise of judicial power. In response to questions about his agenda, which often revolved around judicial review, Bork proposed a jurisprudence of “original intent” that would affirm the importance of the constitutional text in guiding a justice. His failure to be confirmed was, in part, a failure to convince the Senate on this issue.

The current debate over the legitimacy of the Supreme Court's use of judicial review is only the most recent phase of a historical dialogue essential to the maintenance of the Constitution. The Court will continue to exercise judicial review; the constitutional order demands as much. In this sense, the lessons taught by the history of the Supreme Court and judicial review have nothing to do with the framers' intentions, either of implementation or scope. Rather, the past speaks to the present in another way. Americans can—and will—debate the legitimacy of judicial review, but they should know that dialogue nourishes their distinctive experiment in constitutionalism. Americans have never taken judicial review for granted, and they never can.

See also Impact of Court Decisions; Implied Powers; Judicial Power and Jurisdiction; Judicial Self‐Restraint.

Bibliography

Alexander Bickel , The Supreme Court and the Idea of Progress (1970).
John Brigham , The Cult of the Court (1987).
Edward S. Corwin , The Higher Law Backgrounds of American Constitutional Law (1928).
Richard E. Ellis , The Jeffersonian Crisis: Courts and Politics in the Young Republic (1971).
Louis Fisher , Constitutional Structures (1990).
Kermit L. Hall , The Supreme Court and Judicial Review in American History (1985).
Catharine MacKinnon , Toward a Feminist Theory of the State (1989).
Walter Murphy,, William Harris,, and and James Fleming , American Constitutional Interpretation (1986).
Elliot E. Slotnick , The Place of Judicial Review in the American Tradition, Judicature (1987): 68–79.

John Brigham

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

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

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.

Judicial Review. Judicial review, the power of courts to determine the legality of governmental acts, usually refers to the authority of judges to decide a law's constitutionality. Although state courts exercised judicial review prior to the ratification of the Constitution, the doctrine is most often traced to the landmark U.S. Supreme Court decision Marbury v. Madison (1803), which struck down an act of Congress as unconstitutional. In a now classic opinion, Chief Justice John Marshall found the power of judicial review implied in the Constitution's status as “the supreme Law of the Land” prevailing over ordinary laws.

Both federal and state courts have exercised judicial review. Federal courts review federal and state acts to ensure their conformity to the Constitution and the supremacy of federal over state law; state courts review laws to ensure their conformity to the U.S. Constitution and their own state constitutions. The power of judicial review can be exercised by any court in which a constitutional issue arises.

Judicial review gained added importance in the late nineteenth and early twentieth centuries, as courts passed judgment on laws regulating corporate behavior and working conditions. In these years, the Supreme Court repeatedly struck down laws regulating wages, hours of labor, and safety standards. This is often called the Lochner Era, after Lochner v. New York, a 1905 decision ruling a New York maximum‐hours law unconstitutional on the grounds that it violated the due‐process clause of the Fourteenth Amendment. During this period, the Supreme Court invalidated no fewer than 228 state laws.

Justice Oliver Wendell Holmes Jr., dissenting from many of these decisions, urged judges to defer to legislatures. In the later 1930s, the Supreme Court adopted the Holmes approach—partly in response to the threat of President Franklin Delano Roosevelt's “court packing” plan of 1937. Deferring to legislative judgment, the Supreme Court thereafter upheld virtually all laws regulating business and property rights, including laws similar to those invalidated during the Lochner Era.

Under the chief justiceship of Earl Warren (1953–1969) and beyond, however, the Court moved toward striking down laws restricting the personal rights and liberties guaranteed by the Bill of Rights, particularly measures limiting freedom of expression, freedom of religion, the rights of criminal defendants, equal treatment of the sexes, and the rights of minorities to equal protection of the law. In another extension of judicial review, the Court read new rights into the Constitution, notably the right of privacy (including abortion rights), and invalidated laws restricting those rights. Many other countries, including Germany, Italy, France, and Japan, adopted the principle of judicial review after World War II, making constitutional law one of the more important recent American exports.
See also Federal Government: Judicial Branch; Federalism; State Governments.

Bibliography

Bernard Schwartz , A History of the Supreme Court, 1993.

Bernard Schwartz

judicial review In England and Wales, the re-examination in the High Court (acting as the supreme court of appeal) of a previous verdict. The review may decide on various courses of action, such as overturning a verdict, changing the sentence on a conviction, or issuing an injunction.